Twenty-three years ago, the Supreme Court approved of a novel state law banning sidewalk counselors from approaching women outside abortion clinics and speaking with them about alternatives to abortion. That decision was one of the Court’s most egregious First Amendment mistakes this century — and last week, a case landed on its docket asking the justices to fix it.
In Hill v. Colorado, the Supreme Court considered a law banning people near abortion clinics from approaching within eight feet of another person for purposes of “oral protest, education, or counseling.” The Court upheld the law, with Justice Stevens claiming for the majority that it was needed to protect a newly minted interest of an “unwilling listener” in “avoiding unwanted communication.” Following Hill, numerous jurisdictions around the country have adopted their own versions of Hill laws — not only silencing life-affirming sidewalk counselors, but also depriving abortion-vulnerable women of a final opportunity to receive a little more information, consider offers of help, and learn about the resources available to them before making a potentially life-altering choice.
Hill was egregiously wrong. If the First Amendment protects anything, it protects the right to peacefully approach a fellow citizen on a public sidewalk and speak with her on a question of profound significance. Indeed, as the vigorous separate dissents of Justices Scalia and Kennedy explained at the time, the best way to understand Hill was not as a First Amendment decision at all, but as a decision about abortion. Having decided in Roe v. Wade to constitutionalize an abortion right, Justice Scalia explained, the Court was now “distort[ing]” the First Amendment to sustain that “highly favored practice.”
The view of the Hill dissenters has now become that of a majority. In its landmark opinion overruling Roe and rejecting a constitutional right to abortion, the Supreme Court in Dobbs surveyed the ways in which the Court’s abortion cases had “distort[ed] . . . many important but unrelated legal doctrines.” One area Roe and Casey had “distorted,” the Court said, was the First Amendment. And the Court’s citation? The Hill dissents.
But Hill remains on the books, meaning governments continue to deprive women of information and help in a time of need by outlawing even friendly discussion on public sidewalks. That is what Debra Vitagliano, a devout Catholic and mother of three, wants to offer. Mrs. Vitagliano, whose day job is as an occupational therapist to special-needs children, seeks to stand outside a Planned Parenthood in White Plains, N.Y., peacefully approach women on their way into the clinic, and offer them information about resources that could help support them if they choose to carry their baby to term. But in June 2022, Westchester County adopted a new law modeled on the one in Hill, banning that practice. And after Mrs. Vitagliano sued, the lower courts rejected her claim, citing Hill.
Mrs. Vitagliano is now asking the Supreme Court to hear her case, overrule Hill, and restore the First Amendment’s protections for initiating peaceful conversations on public streets and sidewalks. And the time is right for the Court to do so. It makes little sense for a case the Court has already recognized as a “distortion” to continue trumping First Amendment freedoms on the ground. And in the wake of Dobbs, Hill’s practical harms have only gotten worse, as more abortions are now taking place in precisely those jurisdictions that have adopted Hill laws.
Hill laws by their terms discriminate based on the content of speech — which the First Amendment typically forbids. Under a Hill law, a speaker is free to approach a woman without consent and ask her the time, solicit donations, or even wish good luck with her abortion. But if the speaker attempts to educate her about alternatives to abortion, the speaker has committed a crime.
No one doubts that the government can stop abortion protesters from obstructing clinic entrances or threatening women. But Hill laws have nothing to do with those goals. As Chief Justice Roberts explained in the Supreme Court’s unanimous decision protecting speech in McCullen v. Coakley, many other laws already prohibit obstruction and violence, and sidewalk counselors “are not protestors”; their aim is not to intimidate or coerce but to inform women of alternatives and “to provide help in pursuing them.” In short, Hill laws don’t keep abortion-vulnerable women safe; they serve only to keep them isolated and in the dark.
That Hill is on the chopping block is no surprise to anyone — least of all to the governments that continue passing laws modeled on it. In Mrs. Vitagliano’s case, for example, the public record shows that Westchester County was well aware that in passing a Hill law, it was daring the Supreme Court to intervene. In meetings leading to the law’s passage, Westchester’s legal team informed its lawmakers that “although Hill is still on the books,” “I think we know what the Supreme Court would rule” if it considered the issue again, “so hopefully our legislation never gets to the Supreme Court.”
That is no way for elected officials to treat either the Supreme Court or the constitutional rights of their constituents. Yet the county was right about one thing: Only the Supreme Court can stop it. Vitagliano v. County of Westchester gives the Court an opportunity to do so — notching a powerful victory for the First Amendment, abortion-vulnerable women, and the rule of law alike.