September 1, 2023
On August 24, the Ethics and Public Policy Center filed an amicus brief in the Supreme Court in support of a petition for certiorari filed in Vitagliano v. County of Westchester. This case challenges a county ordinance that prohibits sidewalk counselors from within eight feet of anyone near an abortion clinic without express consent. The law was passed five days after the Supreme Court’s Dobbs decision and is materially identical to a state law the Supreme Court upheld in Hill v. Colorado (2000), a decision that liberal scholar Laurence Tribe called “slam-dunk wrong.”
The brief, co-authored by EPPC fellow Eric Kniffin, highlights the close cooperation between Planned Parenthood and Westchester County and urges the Supreme Court to hear the case and overturn Hill as one of the most egregious examples of how abortion politics has distorted the Court’s free speech jurisprudence:
Planned Parenthood worked hand and glove with Westchester County to pass the bubble zone the former had deemed “critical” to abortion access. Both also zealously defended the law before the Second Circuit. Planned Parenthood claimed the law “is critical to achieving” “safe access to abortion services.” The County likewise defended its buffer zone as “narrowly tailored to protect … access to reproductive health care facilities.” But after the decision below was issued on June 21, Planned Parenthood and the County did an about face. Less than a month later, Planned Parenthood told the County it was “in support of repealing the bubble zone provision. [W]e have not seen the eight-foot floating bubble zone as being beneficial to patients and guests of our health centers.” The County again followed Planned Parenthood’s lead: “After consultation with representatives of reproductive rights organizations … [the Legislation and Health Committees] determined that [the eight-foot bubble zone] is not necessary….” On August 7, the County repealed the bubble zone provision.
In April, the County’s bubble zone was “critical to achieving” “safe access to abortion services.” In July, the same party said the same law wasn’t even “beneficial.” The law had not changed. The facts on the ground had not changed. The difference, of course, was the looming possibility that this Court—the only body with authority to revisit Hill—might hear this case. As the County told the Second Circuit, “Appellant … simply seeks to use this Court as a stepping stone on the way to the Supreme Court, where she hopes to overturn 23-year-old precedent.”
Petitioner has maintained the same arguments throughout this litigation. The County’s flip-flop is yet another transparent “gambit to duck Supreme Court review.”
This Petition thus presents the Court with a rare case where the court below, the Petitioner, and the Respondent all appear to agree on the central legal issue: Hill v. Colorado is a prime example of abortion distortion; the only way to reconcile the Court’s 2000 decision with its Free Speech jurisprudence is to overturn it.
EPPC thanks Daniel N. Nightingale of the law firm of Wheeler Trigg O’Donnell LLP for his excellent and generous work on this amicus brief.