According to the states’ brief, “Hill has allowed the government to infringe on First Amendment rights for over 20 years and counting.”
Vitagliano’s case was dismissed by a New York District Court based on the Hill v. Colorado precedent. Her case was then dismissed again on June 21 by the Second Circuit Court of Appeals for the same reason.
Both courts agreed with lawyers for Westchester County that the New York bubble law is valid under binding precedent established by Hill in 2000.
In its decision, the Second Circuit Court said that Vitagliano’s arguments that Hill was wrongly decided “have no bearing on the disposition of the appeal.”
The appeals court went on to say that “the Supreme Court has stated in clear terms that ‘[i]f a precedent of this court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case [that] directly controls, leaving to this court the prerogative of overruling its own decisions.’”
Accordingly, Hill remains controlling precedent and dictates that the county’s bubble zone withstands First Amendment scrutiny.
Now, Vitagliano is asking the Supreme Court to revisit the Hill v. Colorado precedent and overrule laws restricting the free speech of pro-lifers near abortion clinics across the country.
The Supreme Court has yet to say whether it will take up the case.
Mark Rienzi, president and CEO of Becket, told CNA that he is “optimistic” that the Supreme Court will take up the case “as an opportunity to overrule Hill and help protect the First Amendment rights of sidewalk counselors across the country.”
According to Rienzi, the court will likely decide this fall whether to take the case.
Rienzi said that the slew of amicus briefs signifies an “outpouring of support” that “emphatically underscores the importance of Mrs. Vitagliano’s case and the need for the court to take it.”
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“Eighteen briefs in support of certiorari is a huge number,” Rienzi said. “The briefs dismantle the reasoning of the Supreme Court’s old Roe-era precedent — Hill v. Colorado — upholding bubble zone laws outside abortion clinics.”
“Especially in light of this diverse coalition of support,” Rienzi went on, “it is clear the court should finally overturn Hill, restore free speech outside abortion clinics, and protect both life-affirming sidewalk counselors and the abortion-vulnerable women who deserve their help.”
On Aug. 7 the Westchester Board of Legislators voted to repeal the provision of the bubble zone law that prevented pro-life counselors from approaching abortion-minded women outside abortion clinics, according to the Catholic law firm the Thomas More Society. Nevertheless, the Thomas More Society said in an Aug. 9 statement that dangerous remaining aspects of the Westchester law still warrant a pro-life response.
According to the Thomas More Society, there are six remaining provisions in Westchester County law that impose significant restrictions on pro-life free speech.
The firm is representing 40 Days for Life in a separate lawsuit involving the Westchester County’s restrictions on pro-life advocacy.
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