40 Days for Life Sues to Stop Law That Bans Free Speech Outside Local Abortion Clinic

State   |   Tom Ciesielka   |   Dec 6, 2022   |   6:18PM   |   White Plains, New York

The international organization 40 Days for Life, a local 40 Days for Life vigil group, and two individual plaintiffs have asked a New York federal court to stop Westchester County and named officials from enforcing a law imposing multiple restrictions on the speech of pro-life advocates on the sidewalks and rights-of-way adjacent to abortion clinics in the county.

In an Amended Verified Complaint filed on November 24, 2022, the plaintiffs request a preliminary injunction which, if granted, would prevent the defendants from enforcing the new law, Chapter 425 of the Laws of Westchester County, while the matter is under court consideration, followed by a permanent injunction on enforcement.

Chapter 425 includes a “floating bubble zone” provision that makes it illegal for sidewalk counselors to “approach” within 8 feet of anyone who is within 100 feet of the entrance to an abortion clinic unless they have the person’s prior “affirmative” consent to do so. The law defines “approach” as any movement to a point within eight feet of any part of another person’s body by any part of a pro-life advocate’s body or even a sign held by a pro-life advocate.

“The floating bubble zone is a classic content-based restriction on speech,” said TMS Special Counsel Christopher A. Ferrara. “Only speech that involves ‘protest, education or counseling’—meaning only pro-life speech, obviously—is forbidden within the floating bubble under threat of arrest, prosecution, fines and up to six months in jail. You can talk about the weather or anything else inside the floating bubble, but if you breathe a word about the pro-life message, you are a criminal.”

Ferrara’s co-counsel, Thomas More Society Counsel Michael McHale, further explained the Westchester County law being challenged.

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“The law also establishes a ‘no follow and harassment’ zone within 25 feet of any part of the premises of an abortion clinic, including the public portion of the driveway that is the primary point of peaceful encounter between pro-life sidewalk advocates and people approaching or leaving one of the abortion clinics by car. ‘Following’ could mean a step or two, while ‘harassment’ is defined, incredibly enough, as any form of unwanted speech or conduct, no matter how peaceful, that does not stop after an ‘express or implied request’ to cease. What does ‘implied request’ mean? That’s anybody’s guess, which is why the law is unconstitutionally vague and also overly broad. That is also true of the law’s other prohibitions of ‘obstruction’ of access to an abortion clinic or ‘interference’ in its operation, defined to include ‘by deceptive means’—meaning potentially any pro-life speech the political opposition deems ‘misinformation.’”

“We count at least seven layers of unconstitutional speech restrictions in this one law,” added Ferrara. “During the legislative sessions that preceded its adoption, the members of the ‘pro-choice’ Board of Legislators made it clear that they were targeting pro-life speech they deemed too ‘offensive’ to allow. The First Amendment does not allow government to ban lawful speech it deems offensive merely because it disagrees, however vehemently, with the message,”

As the local 40 Days for Life vigil group that is a plaintiff in the action warned its participants: “This law is designed to intimidate pro-lifers and scare them off the sidewalks in front of abortion facilities. We cannot allow it to achieve that goal.”

Chapter 425 was passed four days after the Supreme Court issued the decision in Dobbs v. Jackson Women’s Health, overruling Roe v. Wade. “The County legislators made it clear during the meeting at which they voted to adopt Chapter 425 that it was in part retaliation for the Dobbs decision. But the same legislators know full well that, just for starters, the floating 8-foot bubble zone may well be struck down by the Supreme Court, whose more recent decisions clearly call into question an earlier Supreme Court decision, Hill v. Colorado, that upheld such a law despite its patent targeting of pro-life sidewalk counselors—an unconstitutional “content-based” restriction on speech that seeks to punish speakers based on the officially disfavored content of their message.

Since Hill, the Supreme Court has recognized that “floating bubble zones” in which pro-life speech is criminalized but other kinds of speech are allowed, violate the First Amendment. Accordingly, TMS’s Amended Verified Complaint against Westchester County quotes the Court’s 2014 decision in McCullen v. Coakley, wherein the majority observes that “when the government makes it more difficult to engage” in pro-life “sidewalk counseling,” including “normal conversation and leafletting on a public sidewalk,” it “imposes an especially significant First Amendment burden.” Additionally, the Amended Complaint notes that any laws regulating this peaceful pro-life advocacy must give “adequate breathing space to the freedoms protected by the First Amendment,” per Madsen v. Women’s Health (1994).

“Westchester County has completely ignored the Supreme Court’s clear warnings,” observed Ferrara, “by enacting a blitzkrieg of restrictions on speech near abortion providers that leave zero breathing space for peaceful pro-life expression.”

Read the First Amended Verified Complaint filed in 40 Days for Life, et al v. County of Westchester, et al, filed November 24, 2022, by Thomas More Society attorneys in the United States District Court for the Southern District of New York here.