The Supreme Court passed up an opportunity on Dec. 11 to lay the groundwork for overturning its precedent permitting protective zones called “bubbles” around abortion clinics to keep protesters and pro-life sidewalk counselors away.
The nation’s highest court declined a petition filed by Debra Vitagliano that sought to appeal a lower court ruling dismissing her lawsuit that claimed Westchester County, New York, violated the First Amendment to the U.S. Constitution. The petition also specifically invited the court to overrule its existing precedent upholding laws about the bubbles. The U.S. Court of Appeals for the 2nd Circuit ruled against her in June.
Ms. Vitagliano expressed disappointment that the court turned down her petition.
“A pregnant woman in need deserves to know that she and her child will be loved, defended, and supported,” she said in a statement provided by her attorneys after the Supreme Court ruled.
“Westchester County threatened to put me in jail for over a year, just for speaking a message of hope to women outside abortion clinics. When I asked the Supreme Court to take my case, Westchester County repealed the law, admitting it had not been necessary to threaten women with jail time for peaceful conversations. No government official should try to outlaw compassionate conversations on a public sidewalk.”
Ms. Vitagliano is a devout Catholic and an occupational therapist, according to her attorneys at the Becket Fund for Religious Liberty, a public interest law firm focused on protecting religious freedoms.
For more than 40 years, she has worked with children diagnosed with various physical and neurological disabilities, including severe disabilities that some seek to address by abortion. Consistent with her Catholic faith, she opposes abortion and sees it as the deliberate termination of an innocent human life.
Two years ago, she participated in a prayer vigil at the Planned Parenthood facility in White Plains, New York. As part of the vigil, she engaged in peaceful prayer and held signs about how abortion affects expecting mothers and fathers. She also trained to counsel women considered likely to seek an abortion.
“She views this ministry as a final attempt to turn pregnant women away from abortion and to save the lives of unborn children,” according to Becket.
Ms. Vitagliano decided to begin sidewalk counseling to discourage abortions, but Westchester County enacted a law limiting speech around abortion clinics. The law created a 100-foot zone—also called a bubble—around abortion clinics and forbade anyone from coming within eight feet of a person within the zone without permission.
The law was passed after the Supreme Court ruled in 2022 in Dobbs v. Jackson Women’s Health Organization that there was not a constitutional right to an abortion. That decision overturned Roe v. Wade and returned the regulation of abortion to the states.
The Supreme Court upheld the validity of zones outside abortion clinics in Hill v. Colorado (2000). The law in question banned approaching within eight feet of another person “for the purpose of … engaging in oral protest, education, or counseling,” unless the person being approached consents.
But in the years since the Hill opinion was issued, later precedents have “all but interred” Hill’s analysis, leaving it “an aberration in [the Court’s] case law,” Justice Clarence Thomas wrote in a dissenting opinion in City of Austin v. Reagan National Advertising (2022). Justices Neil Gorsuch and Amy Coney Barrett joined the dissent.
The law in Westchester County “was passed to stop life-affirming advocates from peacefully engaging with women in their time of most need,” according to Becket.
She was “motivated by her faith to help vulnerable women approaching abortion clinics, but the Westchester law barred her and all others who seek to offer this help by threats of fine or imprisonment. It also deprived women of receiving peaceful and often welcomed offers to help.”
Because the legal provision to which Ms. Vitagliano objected was repealed by the county in August of this year, the case should be dismissed as moot, the brief stated.
“Inherent in the powers granted to it by Article III of the Constitution, and in accordance with the Court’s long history and tradition, this institution operates under the fundamental principle that it only hears cases where it can decide issues that affect the rights of the litigants before it.
“Here, there is no active controversy before the Court. Petitioner challenges the constitutionality of Section 425.31(i) of the Laws of Westchester County. However, that law no longer exists. The County has repealed the provision, rendering the question of its validity moot.”
Moreover, Ms. Vitagliano brought this litigation “as a pre-enforcement challenge; never once did [she] allege that she: (1) engaged in the activity prohibited by that subsection; (2) was actually threatened with enforcement; or (3) was subject to enforcement.”
The Epoch Times reached out to the county’s in-house attorneys, John Nonna and Justin Adin for comment, but had not received a reply from either of them as of press time.
