The Supreme Court on Monday refused to hear a challenge to a precedent enabling states to enact laws prohibiting anti-abortion activists from approaching someone entering an abortion clinic.
In 2000, the high court ruled that the First Amendment did not prohibit such a law in Colorado. Several of the Supreme Court’s conservatives have publicly cast doubt on the decision’s viability, concerns they again raised in the majority opinion overturning the constitutional right to abortion last year.
Backed by anti-abortion and religious interests, a Catholic “sidewalk counselor” sought to have the precedent overturned by appealing her challenge to a Westchester County, N.Y. law to the high court.
But in a brief order, the justices declined to hear the dispute, letting a lower ruling stand that upheld the law under the 23-year-old precedent, Hill v. Colorado. There were no noted dissents.
Days after the landmark decision overturning abortion protections last year, Westchester County, N.Y., responded by passing a law similar to the one at issue in Hill.
Westchester County’s law makes it a misdemeanor to knowingly approach within eight feet of another person entering an abortion clinic for the purpose of protesting, counseling or handing any material to them.
Violations can carry a fine and up to six months imprisonment, while subsequent violations can result in up to a year of prison time.
Debra Vitagliano, an anti-abortion Catholic and “sidewalk counselor,” sued the county last November by arguing the law violates her First Amendment rights.
“If the First Amendment protects anything, it protects the right to engage in peaceful, face-to-face conversations about important matters on a public sidewalk,” attorneys at the Becket Fund for Religious Liberty, which represents Vitagliano, wrote to the justices.
Vitagliano’s request to hear the case was backed by several anti-abortion and religious groups, including Students for Life of America, Christian Legal Society, Knights of Columbus and the group that organizes the annual March for Life. Fourteen Republican attorneys general also filed papers with the court backing Vitagliano.
“There is no abortion exception to the First Amendment,” the attorneys general wrote. “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.”
Those arguments echo the criticisms voiced by several of the Supreme Court’s conservatives in recent years.
In overturning the constitutional right to abortion last year, Justice Samuel Alito, joined by four of his fellow conservatives, cited Hill in arguing that Roe had “distorted First Amendment doctrines.”
Months earlier, Justice Clarence Thomas called Hill an “erroneous decision” that now has a “defunct status.”
He is the only justice who voted in the case who remains on the Supreme Court. The criticisms of some of the newest justices had raised expectations that the conservative-majority court would take on the precedent.
“Hill is an aberration in our case law,” Thomas wrote last year, joined by Trump appointees Justices Neil Gorsuch and Amy Coney Barrett.
