EXCLUSIVE — Americans United for Life filed a brief in the Supreme Court to overturn abortion-related free speech restrictions allowed in a 2000 high court case.
AUL filed the brief, obtained exclusively by the Washington Examiner, in support of a New York case challenging the precedent, where sidewalk counselor Debra Vitagliano was barred from informing women seeking abortions of alternative options.
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Westchester County, New York, passed a law in June 2022 prohibiting people like Vitagliano from engaging in sidewalk counseling, based on the 2000 precedent in Hill v. Colorado. Vitagliano sued the county and recently asked the Supreme Court to review the case.
The potential to overturn Hill was signaled by Justice Samuel Alito in his majority opinion in Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade, which noted that the high court's precedent on abortion cases had "diluted the strict standard for facial constitutional challenges."
Roe's demise gave an opening to overturn Hill, and Vitagliano's case could be decided as early as the court's fall term.
Citing Hill specifically, Alito said the court's abortion precedent had "distorted First Amendment doctrines."
“Hill not only silenced sidewalk counselors’ protected speech,” AUL policy counsel Danielle Pimentel told the Washington Examiner, “but it has also harmed women and girls, especially those experiencing coercive abuse, by preventing sidewalk counselors from discussing abortion alternatives, the procedure’s risks, and available resources.”
In Hill, the nation's high court ruled a Colorado statute prohibiting similar activity outside facilities like abortion clinics within 100 feet was not a violation of the First Amendment right to free speech.
The law "is not a 'regulation of speech.' Rather, it is a regulation of the places where some speech may occur," the 6-3 opinion by former Justice John Paul Stevens said.
In his dissent, former Justice Antonin Scalia, joined by Justice Clarence Thomas, called out the increased state power in controlling speech.
“‘Uninhibited, robust, and wide open’ debate is replaced by the power of the state to protect an unheard-of ‘right to be let alone’ on the public streets,” Scalia said.
"This Court may have overturned Roe v. Wade, but Roe’s distortion of First Amendment law continues to infringe upon the fundamental rights of sidewalk counselors," AUL, an organization that predates the Roe decision, said in the brief.
The group noted retired Justice Anthony Kennedy's dissent in Hill, writing, "For the first time, the Court approves a law which bars a private citizen from passing a message, in a peaceful manner and on a profound moral issue, to a fellow citizen on a public sidewalk.”
After Roe was decided, a web of abortion precedent was built upon it, affecting medical standards, standing, and other legal norms — a phenomenon opponents call the "abortion distortion."
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“As Roe made it difficult to enact any legislation protecting women and preborn children, it also interfered with the democratic process and created an abortion distortion that warped other legal doctrines." AUL litigation counsel Carolyn McDonnell told the Washington Examiner. "The Supreme Court should overturn the wrongly decided Hill case to restore the right of all Americans to engage in public discourse about alternatives to abortion.”
Science and medicine in recent years have turned into political wedge issues, including and expanding beyond abortion, such as discourse about the coronavirus and the efficacy of masks and vaccines.