by Sarah Newton
Bubble Zones: Constitutional or Abortion Distortion of the First Amendment?
In the three years since the Supreme Court overturned Roe v. Wade in Dobbs v. Jackson Women’s Health Organization and held there is no federal “right to abortion”, multiple cases have raised the First Amendment rights of sidewalk counselors to speak to and approach abortion-minded women on public property outside abortion facilities. Specifically, the lawsuits challenge “bubble zone” laws—areas where speech is restricted or prohibited even on public sidewalks around abortion clinics. The Supreme Court denied review in three bubble zone cases in the past two terms: Coalition Life v. Carbondale, Illinois, Turco v. Englewood, and Vitagliano v. Westchester, New York. Yet other cases are still “bubbling up” through the lower courts, including Florida Preborn Rescue v. City of Clearwater, Florida and Lopez v. City of San Diego. In each case, the government has relied on Hill v. Colorado, a 2000 Supreme Court decision that distorted First Amendment doctrine to hold bubble zones constitutional. Hill was much criticized by members of the Court before Dobbs, and with the precedent that once undergirded it now gone, Supreme Court review and a possible overturn of that poorly reasoned decision now seems likely.
What Are Bubble Zones?
Hill considered a 1993 Colorado law that established a hybrid “buffer-bubble zone” near abortion centers to “protect” abortion-minded women from pro-life advocates who desired to counsel them. The law prohibited anyone within one hundred feet of a healthcare facility (the “buffer zone”) from coming within eight feet of a patient (the “bubble zone”) to counsel, protest, or educate the patient without the patient’s consent. Several pro-life sidewalk counselors filed suit, arguing that the statute violated their First Amendment rights and specifically targeted their pro-life speech. The case eventually reached the Supreme Court, where a 6-3 decision held that the law was constitutional. Although the majority acknowledged the First Amendment rights of the counselors, it explained that there is a “right to be let alone” and that the Colorado statute balanced these positions. According to the Court, the law was also content neutral, meaning that it did not depend on what the speaker said. Since the Hill law only regulated the place of speech, it did not hinder free speech. Further, the majority held that the law was narrowly tailored, meaning that it restricted the least amount of speech necessary to fulfill the State’s interests. The Court acknowledged that the law broadly prohibited any sidewalk counseling. However, it explained that counseling from a distance was still allowed. The Court thus praised the law for avoiding targeting the pro-life position.
A First Amendment Rights Debate
Justice Scalia (joined by Justice Thomas) and Justice Kennedy vigorously dissented from the Court’s decision in Hill. The dissenters explained that the Court should uphold First Amendment rights against a non-existent “right to be let alone.” Kennedy pointed to Supreme Court case law, which unanimously supports the First Amendment right to picket and protest. He and Justice Scalia also stressed that the First Amendment covers speech the government dislikes, citing cases involving the draft and election campaigning. Justice Kennedy explained that the origin of a “right to be let alone” comes from Justice Louis Brandeis (who was on the Court in the first half of the Twentieth Century), and that it originally referred to being “let alone” by the government, not by private actors. Scalia and Kennedy explained that, traditionally, an individual was only protected from uncomfortable speech in the home. Thus, Scalia charged, Hill “elevates the abortion clinic to the status of the home.”
Targeting Pro-Lifers Rights
Similarly, the dissenters contended, Hill’s statute was a content-based restriction and specifically targeted pro-lifers. Justice Kennedy explained that the law must be content based since it required enforcers to examine what was said to determine guilt. He added that if the law related to race “our predecessors would not have hesitated to hold it was content based.” Scalia pointed out that “[w]e know what the Colorado legislators, by their careful selection of content . . . were taking aim at,” by forbidding counseling “against certain medical procedures.” This legacy has continued down to current litigation, where various municipalities have enacted bubble zones to express anger at the Dobbs decision and to suppress sidewalk counselors’ First Amendment rights.
Further, Hill disregarded narrow tailoring. Scalia and Kennedy noted that overbreadth is the opposite of narrow tailoring and that “the statute here is plainly not narrowly tailored to protect the interest” of Colorado. The law was far more restrictive than was necessary to protect the State’s interest in patient safety. Kennedy and Scalia explained that, if there was a real interest in safety, the section of the law forbidding harassment would be sufficient. Additionally, as plaintiffs in recent bubble zone lawsuits have cited, the Freedom of Access to Clinic Entrances (FACE) Act already protects patients from harassment outside abortion facilities.
Dobbs Addresses Abortion Distortion
After permitting Hill to distort First Amendment jurisprudence for twenty-three years, the Supreme Court denounced it in Dobbs. Justice Alito, the author of the Dobbs decision, listed Hill as an example of the abortion distortion—the way the Court has misapplied or ignored its precedents in order to further Roe’s purported abortion right—in the context of the First Amendment. This view of Hill goes back to the original decision. In their dissents to Hill, Justices Kennedy and Scalia critiqued the distortion to the First Amendment, content neutrality, and narrow tailoring doctrines. Yet the Supreme Court has declined to revisit Hill even though three petitions for review have presented this question to the Court following the Dobbs decision. Since the Dobbs decision, Justice Thomas has criticized Hill in his dissent to the denial of review in Coalition Life.
Justice Thomas recognized that he, along with Justices Gorsuch and Barrett, have described Hill “as an ‘absurd,’ ‘defunct,’ ‘erroneous,’ and ‘long-discredited’ ‘aberration’ from the rest of our First Amendment jurisprudence.” Although lower courts continue to follow Hill, Justice Thomas argued that Hill has eroded and that he “do[es] not see what is left of Hill.” However, many judges are unwilling to act contrary to Hill without a clear ruling from the Supreme Court, thereby allowing laws to continue to violate free speech.
Abortion Distortion Silences Pro-Life Counselors
This issue is still affecting the free speech of counselors. These laws distort abortion by silencing pro-life counselors’ speech, thus impairing the informed consent of women who do not receive counseling about abortion alternatives. According to Americans United for Life’s amicus brief in Coalition Life, “84% [of women seeking abortion] have inadequate counsel.” Further, up to “24% do not want to abort.” Despite this, over 90% of women served by abortion facilities choose abortion. Counseling provided by groups like Coalition Life and Florida Preborn Rescue, or by people like grandfather Roger Lopez and child therapist Debra Vitagliano, provide women with vital information about options and resources which women do not receive from the abortion clinic. Lopez alone has helped one hundred women choose life, while national groups have assisted over 22,000 abortion-minded women.
Hill Must Be Overruled
Although the Supreme Court has declined to hear cases asking that Hill be overruled, bubble zone laws are still prevalent. Hill now faces the same problems as Roe and Casey did by being unworkable, yet lower court judges feel compelled to follow Supreme Court precedent. It is therefore necessary for the Supreme Court to explicitly overrule Hill. Once Lopez or Florida Preborn Rescue reaches the Supreme Court, it will present the Court with an opportunity to bring clarity to First Amendment doctrine and return free speech back to the abortion debate.
