Westchester abortion protest "bubble law" is upheld on appeal

The plaintiff in this case is an anti-abortion activist who wants to counsel women outside abortion clinics as a means to talk them out of having the procedure. The problem is that Westchester County enacted a law three days after the Supreme Court overruled Roe v. Wade in June 2022 that says you cannot knowingly approach a woman within eight feet outside an abortion clinic in order to communicate your opposition to abortion. Hence, this lawsuit.

The case is Vitagliano v. County of Westchester, issued on June 21. The district court dismissed the case, holding that plaintiff did not even have standing to bring the case in the first instance. The Court of Appeals (Livingston, Carney and Raggi) rejects that analysis. You have standing to challenge a law if you intend to do what the law prohibits and are there deterred from doing it to avoid a civil fine or an arrest. Standing is a jurisdiction requirement that cannot be waived. It derives from the Constitution, which says courts only have authority resolve "cases or controversies," interpreted to mean that the parties have a real stake in the outcome of the case. Federal courts thus do not issue advisory opinions. 

Plaintiff's desired anti-abortion activism falls squarely within the Westchester County law that prevents her from approaching women within eight feet. Since Westchester had recently enacted the law, plaintiff also faced a credible fear of enforcement, which deterred her from this kind of activism.

While plaintiff wins the standing battle, she still loses the case. That's because the Westchester law is constitutional, modeled after a Colorado law that the Supreme Court upheld in Hill v. Colorado (2000), which said the state court enforce a bubble zone law that prevented anti-abortion activists from closely approaching women outside abortion clinics. In Hill, the bubble zone was 100 feet. In Westchester, the bubble zone is eight feet, and you cannot so approach women outside these clinics within 100 feet. In other words, once you are within the 100 foot radius, you have to separate yourself by eight feet. If the Supreme Court upheld an identical law in 2000, then the Second Circuit has to uphold the Westchester law in 2023.

Plaintiff argues to the Court of Appeals that Hill was wrongly decided. But Supreme Court precedent holds that the Court of Appeals cannot contravene Supreme Court precedent. The only way to challenge Supreme Court authority is the Supreme Court. Since plaintiff is represented by the Becket Fund for Religious Liberty, an experienced outfit that knows how to file a certiorari petition, my guess is they will ask the Supreme Court to reconsider Hill. Considering the 6-3 conservative majority is open to revisiting prior precedents and only last year overturned Roe v. Wade, can you blame plaintiff for trying?