DENVER (LifeSiteNews) – Colorado pro-life activist Wendy Faustin filed a lawsuit in hopes of eliminating the state’s “bubble law” limiting peaceful sidewalk counseling outside abortion facilities, arguing that the law infringes on pro-lifers’ constitutional right to free speech as well as equal protection under the law.
Colorado’s 1993 law forbids anyone within 100 feet of the entrance to an abortion center from “knowingly approach[ing]” within 8 feet of someone else without his or her consent for the purpose of passing “a leaflet or handbill to, displa[y] a sign to, or engag[e] in oral protest, education, or counseling with [that] person.” The U.S. Supreme Court upheld it in 2000.
Fox News reported that on June 1, Faustin filed a challenge to the law, as well as a related local ordinance in Denver, with the U.S. District Court of Colorado on First and Fourteenth Amendment grounds. She argues that the law makes meaningful respectful dialogue with women considering abortion all but impossible, forcing pro-lifers to yell from a distance in order to be heard at all.
“The basic idea is that free speech means the government can’t squash or silence messages it doesn’t like; it can’t punish people who voice those messages,” explained First Liberty Institute attorney Roger Byron, who is representing Faustin. “That kind of government action is blatantly unconstitutional. The whole point of the First Amendment is to prevent stuff like that. And yet, what we have here in Colorado and Denver is a law and an ordinance that does just that.”
“These laws would have been struck down instantly if they had restricted anti-war protesters or union members on strike outside their employer’s building,” Byron continued, maintaining that current jurisprudence essentially acts as if there are “two First Amendments” in operation. “There’s the real First Amendment that protects your basic civil rights, including free speech, and then there is the other First Amendment that applies to those who advocate the pro-life viewpoint, and it is used to trample their free speech rights.”
The nation’s highest court upheld the law 6-3 in 2000, although the only member still serving is conservative Justice Clarence Thomas, who dissented in the case. Pro-lifers hope it will fare better with a more conservative majority and a legal environment less defensive of abortion, in light of the Court overturning Roe v. Wade last year.
In 2021, the Supreme Court gave pro-abortion bubble (or “buffer”) zone laws another reprieve when it refused to hear Bruni v. City of Pittsburgh, which concerned a 2005 ordinance requiring pro-life activists to stay more than 15 feet away from the entrances to abortion facilities, effectively keeping pro-lifers from communicating with women entering or exiting the building to appeal to them to choose life or offer them assistance with abortion alternatives.
While agreeing that rejecting the particular case was valid on technical grounds because “it involve[d] unclear, preliminary questions about the proper interpretation of state law,” Thomas urged his colleagues at the time to “take up this issue in an appropriate case to resolve the glaring tension in our precedents,” because such laws “often impose serious limits on free speech.”