On July 21, the plaintiff in Vitagliano v. Westchester County petitioned the Supreme Court to find that a county ordinance violates the First Amendment. The ordinance prohibits a person from “engaging in oral protest, education, or counseling” about abortion within 8 feet of a person without that person’s express consent, if that person happens to be within 100 feet of an abortion facility.
The plaintiff, Debra Vitagliano, is a devout Catholic occupational therapist for children with special needs. Vitagliano wanted to do sidewalk counseling outside a Westchester County abortion facility but was facing a criminal misdemeanor if she even spoke to a woman about alternative options to abortion. According to Joseph Davis, an attorney for Becket Law who is representing Vitagliano, Westchester County “doesn’t want women to know about other options” than abortion. The ordinance requires that “within a certain distance you can’t even walk up and have a peaceful conversation,” Davis said.
The ordinance was passed in 2022 following the Supreme Court’s ruling overturning an alleged constitutional “right” to abortion in Dobbs v. Jackson Women’s Health Organization. Westchester County had not seen a need to provide any “bubble zones,” areas where free speech is restricted, until after the Dobbs decision.
Related SCOTUS Decision on Thin Ice
The ordinance is almost identical to a law upheld as constitutional in the 2000 Supreme Court case Hill v. Colorado. The Hill decision was authored by the late Justice John Paul Stevens but joined by five other justices, including supposedly conservative Chief Justice William Rehnquist and Justice Sandra Day O’Connor.
The Hill majority somehow found that it was not a violation of the First Amendment to prevent people from “knowingly approaching” people within 100 feet of an abortion facility “for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person.” The court in Hill reasoned that the ban was a content-neutral restriction that was “narrowly tailored” to protect a legitimate government interest because it prevented people who were entering abortion facilities from “unwanted encounters, confrontations, or even assaults.”
However, Hill seems to be on shaky footing. The late Justice Antonin Scalia vehemently dissented from the Hill decision at the time, and the current court in Dobbs specifically mentioned that its previous abortion rulings, including Hill, had “distorted First Amendment doctrines.” As Davis puts it, the ordinance is a “clear content-based restriction on the face of the law,” which is “totally antithetical to how the First Amendment works.”
Vitagliano is expressly asking the Supreme Court to overturn its decision in Hill, especially since now five sitting justices have cast doubt on Hill’s reasoning. Davis expects the court to conference Vitagliano sometime in October, and if the court agrees to hear the case, it will be decided this term.
Perhaps in response to this, the Westchester County Board of Legislators hastily convened on Aug. 1 to discuss an amendment to the ordinance that would remove the eight-foot restriction because it is “not necessary” and “difficult to enforce.” The Board of Legislators met on Aug. 7 to discuss the repeal, which it passed by a vote of 13-3. However, even with the ordinance repealed, Vitagliano and her attorneys, including her son, Becket Constitutional Law Fellow Daniel M. Vitagliano, are “full steam ahead,” especially since people have already been prevented from speaking to women about alternatives to abortion in Westchester County for over a year.
As Davis put it, “When you’re in public, people have the presumptive right to talk to you,” and “open and unfettered conversations take place” on public sidewalks, like the one where Ms. Vitagliano hopes to peacefully engage with women who are facing an unwanted pregnancy.
Westchester Is the Tip of the Iceberg
But Westchester County, New York, is not the only place where free speech in public places is under attack. The city of Carbondale, Illinois, which established itself as an “abortion destination” following the Dobbs decision, passed a similar ordinance in January 2023, and many other cities and counties throughout the United States have laws preventing free speech near abortion facilities.
These attacks on free speech are not limited to the United States. Recent laws passed in the United Kingdom create a 150-meter buffer zone around abortion facilities that ban even silent prayer. At least three people have been charged under the U.K. law, all for silently praying.
While the U.K. is heading in the wrong direction on free expression, Davis and the rest of Vitagliano’s team hope her case will be a big step toward protecting the rights of peaceful sidewalk counselors in public places.
Anne Courchaine is an attorney, formerly in private practice but now a stay-at-home mom, who lives with her husband and three children in Phoenix, Arizona.
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