Chicagoans can hawk Cubs tickets, campaign for office, and even panhandle in front of abortion facilities, but a city ordinance says they cannot approach women in an attempt to persuade them to let their unborn babies live. That may change if the U.S. Supreme Court agrees to hear a recent appeal by four sidewalk counselors and pro-life organizations.
A 2009 Chicago ordinance made it a crime to come within 8 feet of another person “for the purpose of passing a leaflet or handbill, displaying a sign to, or engaging in oral protest, education, or counseling” without consent. The ordinance applies within 50 feet of the entrance to any “hospital, medical clinic or healthcare facility.” That includes abortion centers.
Chicago’s so-called “bubble ordinance” is similar to others enacted since the Supreme Court’s 1973 Roe v. Wade decision that led to the legalization of abortion nationwide. At least two states, Colorado and New Hampshire, and several major cities, including Phoenix, Pittsburgh, and San Francisco, have such laws.
In the Supreme Court’s Hill v. Colorado decision in 2000, a 6-3 majority upheld the constitutionality of a similar Colorado bubble law, finding that it limited only places where speech might occur, not the content of the speech. First Amendment precedents generally allow government censorship only if the law applies to all speech and is therefore “content-neutral.”
But the plaintiffs argue that two recent Supreme Court decisions call Hill into question: 2014’s McCullen v. Coakley and 2015’s Reed v. Town of Gilbert. The former struck down Massachusetts’ 35-foot bubble law because it was not the least restrictive means possible to accomplish its goal of protecting abortion facility clients. Yet Reed—which involved an offending sign ordinance and not an abortion facility—was the nail in the coffin.
“Reed destroyed Hill,” Thomas More Society Vice President and Senior Counsel Thomas Olp told me. He explained that in Reed the court said whether the government was attempting to regulate the content of speech is more important than whether there was animus against a particular kind of speech—something Hill seemed to require. Olp, who represents the sidewalk counselors in the Chicago case, hopes that the court will see this as a First Amendment issue and not just an abortion case: “Public sidewalks have been from time immemorial a venue for public debate, so if you begin to regulate speech on sidewalks, you encroach on the First Amendment.” —Steve West