There’s No Abortion Exception in the First Amendment

A NOTE FROM THE PUBLISHER: For 23 years, local governments have been allowed to enact content-based restrictions on free speech through abortion-facility buffer zones. Now, the Supreme Court has the opportunity to restore free speech for pro-lifers no matter where they stand.

Debra Vitagliano, a sidewalk counselor and resident of Westchester County.
Debra Vitagliano, a sidewalk counselor and resident of Westchester County. (photo: Maryam Moradi / Becket )

Debra Vitagliano is a 65-year-old Catholic mother of three. In her job as an occupational therapist for children with special needs, she sees the Church’s teaching about the inherent value of every human life affirmed on a daily basis.

Three years ago, Debra felt called to become more personally involved in the pro-life movement. She began by attending prayer vigils outside her local Planned Parenthood abortion facility. It was at these gatherings that she saw firsthand the lifesaving work being done by so-called “sidewalk counselors.” These people have special training to be able to share with young women entering the facility that abortion isn’t the only solution, that help is available, and that they aren’t alone.

Debra was inspired by what she witnessed and decided to become a sidewalk counselor herself. 

“I want to offer abortion-vulnerable women a message of hope and compassion, letting them know that they are loved and can keep their babies,” she explained.

Legislators in New York’s Westchester County, however, wouldn’t allow Debra to do that. On the heels of last year’s Dobbs ruling that overturned Roe v. Wade, they passed a law that made sidewalk counseling within 100 feet of an abortion business a criminal misdemeanor, punishable by a fine of up to $5,000 and a year in jail.

Consider how selective that is. Debra could approach a woman within this “bubble zone” and ask her the time of day, or discuss the weather or even try to bring her to faith in Jesus Christ. This is America, after all, and the sidewalks and streets outside abortion businesses are considered public space. 

But share her views on the sanctity of life? Or hand out a flyer with information about where a woman in a crisis pregnancy can go for medical care, adoption guidance, job counseling, or free diapers and other forms of material support? No. That’s illegal in Westchester County. 

Adding to the outrage is the fact that the county legislators knew they had the U.S. Supreme Court on their side in their content-based restrictions on free speech — at least for the time being.

For the past 23 years, the controlling precedent in abortion buffer-zone cases has been a decision called Hill v. Colorado. A 6-3 majority in 2000 rejected a request by pro-life activists to overturn a Colorado law that’s virtually identical to the one Westchester County adopted. The majority acknowledged that the plaintiffs had “clear and undisputed” free-speech concerns. 

“The fact that the messages conveyed by those communications may be offensive to their recipients does not deprive them of constitutional protection,” Justice John Paul Stevens wrote in his majority opinion.

“On the other hand,” Stevens continued, states may exercise police powers “to protect the health and safety of their citizens,” and that interest may “justify a special focus on unimpeded access to health care facilities and the avoidance of potential trauma to patients associated with confrontational protests.” The Colorado law was not a “regulation of speech,” the majority ruled, but rather “a regulation of the places where some speech may occur.”

Stevens’ reasoning was as muddled then as it sounds today. Hill isn’t just a terrible precedent; it conflicts with subsequent decisions the Supreme Court has rendered on free speech, and it’s high time it was overturned.

Debra Vitagliano may well give the Court a chance to do just that.

Debra sued Westchester County to assert her First Amendment rights. She’s being represented by Becket, a law firm that specializes in free-speech and religious-liberty cases. After the lower courts ruled against Debra, citing Hill, Becket filed a petition asking the Supreme Court to hear the case.

The aim isn’t just to shoot down Westchester’s law, which has already been amended; it’s to have the Supreme Court correct the mistake it made 23 years ago by issuing a new ruling that will overturn Colorado’s law and others like it around the country. 

Fourteen states signed an amicus brief Aug. 25 seeking to restore the free-speech rights of sidewalk counselors. The states are: Alabama, Arkansas, Idaho, Iowa, Kentucky, Mississippi, Missouri, Montana, Nebraska, South Carolina, Tennessee, Texas, Utah and West Virginia.

“There is no abortion exception to the First Amendment,” the states’ brief said. “Sidewalk counseling is not second-class speech, and government restrictions on it must meet the same standards as every other content-based restriction. Hill was wrong from the moment it was decided. And only this Court can fix it.”

Several legal experts as well as pro-life organizations, including pregnancy-resource centers, have also filed amicus briefs.

“The Westchester ordinance singles out speech that might oppose abortion,” the pro-life organization Students for Life of America said in its brief. “Westchester cannot constitutionally silence some viewpoints and allow others.”

Reasonable Catholic Americans — including those sitting on the current Court — surely can see this, no matter what their personal views on abortion happen to be. The Court in 2014 certainly did when it unanimously struck down a Massachusetts buffer-zone law for too narrowly restricting speech near abortion facilities. 

Now is the time for the Supreme Court to strike down Hill.   

But it’s important to recognize that, though overturning Hill is the right thing to do, it won’t truly “set things right.” That’s because there’s no undoing the harm that has been done over many years by silencing sidewalk counselors.

Students for Life of America said it can document 73 instances in 2022-23 alone where its representatives were able to persuade women to let their babies live. But in Colorado, where there are 19 abortion facilities, Montana, where there are six, and several major cities including Chicago that have adopted similar buffer zone laws, that kind of lifesaving work has been prohibited at the very time and place where it matters most: outside of abortion centers, on public property, moments before a woman makes a fateful decision she can never undo.

How many lives have been lost because of the Court’s poor judgment?

America is better than that. Please join me in praying for Hill v. Colorado to be consigned to the legal ash heap, as happened with Roe last year. 

May God bless you!