Pro-life advocates are declaring a victory in Westchester County, New York, after the County Board of Legislators voted, at their August 7, 2023 meeting, to repeal an unconstitutional 8-foot “floating bubble zone” around persons entering or leaving abortion facilities to “protect” them from the “approaches” of pro-life sidewalk counselors—who seek to converse and offer literature on life-affirming alternatives to abortion.
The “bubble zone” was one provision of the law known as Chapter 425 of the Laws of Westchester County, which also establishes a 25-foot “no follow and harass” zone, along with five additional restrictions on pro-life sidewalk counseling. Its repeal follows a lawsuit by Thomas More Society on behalf of the national organization 40 Days for Life, a local vigil group, White Plains 40 Days for Life, and two individual pro-life sidewalk counselors.
“The bubble zone was unconstitutional the moment the board passed it,” said Christopher Ferrara, Thomas More Society Senior Counsel. He noted that the Dobbs decision, reversing Roe v. Wade last year, expressly criticized Hill v. Colorado—a prior United States Supreme Court decision that upheld a similar bubble zone.
“This is indeed a victory for free speech, and for pro-life advocacy,” stated Ferrara. “We stand ready to put the final nail in its coffin with a petition to the U.S. Supreme Court, if need be, so that it can never be reenacted.”
“That ridiculous bubble zone was only the most egregious of seven different restrictions on pro-life counseling under Chapter 425,” Ferrara added. “The other six provisions were apparently inspired by the vacated decision of Second Circuit Court of Appeals, in People v. Griepp, which wrongly found that the mere presence of pro-life advocates and their signs on a sidewalk can violate the Freedom of Access to Clinics Entrances Act (FACE). Ironically enough, the vacating of the ill-founded Griepp decision was another case won by the Thomas More Society—back in 2021.”
Since Hill was decided in 2000, the United States Supreme Court has implicitly recognized that “bubble zones” around abortion facilities are unconstitutional and casted doubt on the precedent set in Hill—even before the 2022 Dobbs decision called it a “distortion” of First Amendment law. In McCullen v. Coakley (2014), the Court asserted that “when the government makes it more difficult to engage” in pro-life advocacy, including “normal conversation and leafletting on a public sidewalk,” it “imposes an especially significant First Amendment burden.”
Additionally, any laws regulating peaceful pro-life advocacy must be given “adequate breathing space to the freedoms protected by the First Amendment,” per Madsen v. Women’s Health (1994).
“Our challenge to the remaining six restrictions on pro-life sidewalk counseling in Chapter 425 continues,” said Ferrara. “We have appealed to the Second Circuit the District Court’s refusal to issue a preliminary injunction against those six provisions, and we are proceeding in the District Court to a hearing on a permanent injunction as to those same restrictions. We will not rest until pro-life advocates in Westchester County have same First Amendment rights to use the public sidewalks for advocacy, just as Black Lives Matter and every other kind of advocate for a cause.”
“As the Supreme Court’s overruling of Roe v. Wade has sent question of abortion back to each state, it is more important than ever that the right to communicate lifesaving information be protected,” emphasized Ferrara. “Those who seek to defend the right to life are constitutionally guaranteed the freedom to speak their mind, and shame on any governmental unit that attempts to curtail that.”