A few weeks ago, Becket Fund president Mark Rienzi explained in a Bench Memos post that the Becket Fund’s just-filed certiorari petition in Vitagliano v. County of Westchester gives the Court an opportunity to fix one of its “most egregious First Amendment mistakes”—its 2000 ruling in Hill v. Colorado that okayed a state law that banned sidewalk counselors from approaching women outside abortion clinics and speaking with them about alternatives to abortion. I won’t reiterate Rienzi’s summary critique of Hill, but I will add that even liberal scholar Laurence Tribe described the case as “slam-dunk easy” and the ruling as “slam-dunk wrong.”

Two things of note have happened in the weeks since the Becket Fund filed its certiorari petition.

First, on August 7, the Westchester County board repealed the bubble-zone ordinance that it had enacted in April. In both instances, the County acted at the behest of Planned Parenthood. In April, Planned Parenthood declared the bubble-zone ordinance “critical to achieving” “safe access to abortion services.” But in August, it urged that the ordinance be repealed because it was not “being beneficial to patients and guests of our health centers” and “is not necessary.” (For a fuller account of the shenanigans, read pp. 13-17 of this amicus brief filed by the Ethics and Public Policy Center—my institutional home—in support of certiorari.)

The County’s repeal is an obvious and desperate effort to discourage the Court from revisiting Hill. That effort should fail. As this amicus brief points out, Debra Vitagliano has sued the County for damages arising from its enforcement of the ordinance against her, so the County’s repeal indisputably does not moot the case. What’s more, a denial of certiorari would “be perceived as a vindication of the County’s keep-away tactics” and would “embolden lawmaking bodies into thinking that they can throw a monkey wrench into a certiorari petition whenever they repeal a provision of law that the Court is being asked to review.” In any event, if the Court is unwilling to overrule Hill, “then it should grant certiorari and say so, which will provide needed assurance and guidance to state and local governments that are drafting and considering clinic-access laws.”

Second, last week various states, legal experts, sidewalk counselors and others filed a remarkable eighteen amicus briefs in support of the Becket Fund’s certiorari petition. (This tweet thread summarizes them.) I certainly don’t mean to suggest that the high number of amicus briefs in support of a certiorari petition is itself a factor that necessarily cuts in favor of a grant. But here the wave of briefs attests to the continuing importance of overturning Hill, and the briefs provide powerful arguments why the Court should avail itself of this opportunity to do so.

Beyond the two amicus briefs linked above, I will briefly highlight two others. Law professors Eugene Volokh, Richard Garnett, and Michael Stokes Paulsen explain here that “principled supporters of free speech opposed the anomaly of Hill regardless of their views on abortion rights.” (They cite Tribe’s comments as well as many other criticisms.) They also argue that Hill “has become an even greater constitutional aberration over time.” Law professors Michael McConnell and John Inazu spell out how Hill “stands in deep tension with longstanding First Amendment values and is an outlier in this Court’s jurisprudence.”