The challenge to the Chicago law creating a “bubble zone” around abortion clinics moves on to federal appellate court with last week’s Thomas More Society filing in the United State Court of Appeals for the Seventh Circuit Court. Lawyers for the plaintiffs in Veronica Price et al. v. The City of Chicago et al., the Thomas More Society charges that the restrictive ordinance is unconstitutional, prohibiting free speech and censoring the content of free speech.
The “bubble zone” ordinance, which has been applied exclusively to abortion facilities, designates a 50-foot radius from an abortion clinic entrance as an area in which persons are prohibited from intentionally coming closer than eight feet to any other person, unless that person gives permission, “for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person.”
Veronica Price, one of the sidewalk counselors suing the city, explained, “My desire as a sidewalk counselor is to give hope and help to women and men considering abortion. Many parents are unaware of the support that is available. By providing information on pregnancy resource centers, church programs, social services and adoption agencies, I can reach out and caringly offer help. Sadly, the bubble zone is not protecting women who are considering an abortion. It is taking away their right to choose. By unconstitutionally denying my right to share important information with women at a critical time, we are doing them a great disservice.”
Price, along with fellow plaintiffs Ann Scheidler, Anna Marie Scinto Mesia, and David Berquist, peacefully exercise their First Amendment rights on the public ways near Chicago abortion facilities. They reach out to women who approach abortion clinics. The City of Chicago enacted the ordinance in 2009, after almost no notice and only two committee hearings, because Alderman Vi Daley claimed that some women outside a Planned Parenthood abortion clinic in her ward were being “followed and photographed.” In fact, Chicago had experienced no mass blockades, few arrests, no convictions and no violence at the handful of abortion clinics that have had a long-term pro-life presence. Rampant misapplication and selective enforcement of the law even resulted in a May 2017 settlement that required Constitutional rights education for Chicago police.
Thomas More Society Senior Counsel and Co-Executive Director Thomas Olp explained, “Contrary to pro-abortion propaganda, pro-life counselors do not intimidate women approaching abortion clinics. That type of engagement would be ineffective. Pro-life sidewalk counselors compassionately and calmly approach women, one-on-one, to offer them information about abortion alternatives, of which many are unaware. The Chicago bubble zone ordinance deliberately curtails our clients’ First Amendment rights.”
The Chicago ordinance is a copycat of Colorado’s similar floating bubble zone statute. In 2000 the Colorado statute was upheld by the Supreme Court in Hill v. Colorado, 530 U.S. 703, over strong dissenting opinions by Justices Scalia and Kennedy. Since then commentators and scholars have condemned the decision as a flagrant abridgment of freedom of speech. More importantly, since Hill, Supreme Court decisions have undercut the rationale of Hill in significant ways. First, the Court no longer recognizes that adults on the public sidewalk have a right to avoid “unwelcome speech.” Second, a statute that regulates based on the content of speech is by definition content based and subject to strict scrutiny, which laws rarely survive. Here the Ordinance prohibits “oral protest,” “counseling,” and “education,” which requires a regulator to look at the speech itself to see what category it falls under. This makes the regulation content based by definition.
In addition, according to Olp, is “vague and overbroad,” and does not “serve any legitimate interest of the City” because the City never had an issue with obstruction of access to clinics in the City. “Yet, the Ordinance creates a no speech zone in front of every medical facility in Chicago.” But recent Supreme Court decisions (especially McCullen v. Coakley, 134 S.Ct. 2518 (2014)) prohibit government regulators from relying on a copycat approach. The City must prove that the speech regulation can be justified in the context in which it is being enacted, and in order to resolve real problems with safety and access. There aren’t any here.”
Olp continued, “This is a special interest law benefitting only abortion clinics. Imagine if this law were applied across the board. Since unconsented to approaches are prohibited, approaching close to a person to offer a free food sample, point of purchase coupon, trial subscriptions, etc., would be prohibited absent prior consent. If this law were applied to any other industry, its irrationality would be evident. Why should the abortion industry be given a special preference at the expense of free speech? There is no good reason. Even the ACLU opposed the Chicago Ordinance.”
Read the appeal of the United States District Court, Northern District of Illinois, Eastern Division, filed by Thomas More Society attorneys with the United State Court of Appeals for the Seventh Circuit Court in the case, Veronica Price et al. v. The City of Chicago et al., here