Before Dobbs was decided, I identified the epicycles of Roe–the distortions of various areas of constitutional law that stemmed from the abortion “ad hoc nullification” machine. One such precedent was Hill v. Colorado (2000). This case upheld a ban on sidewalk counselors approaching women near abortion clinics–they had to stay eight feet away. In dissent, Justice Scalia charged, “What is before us, after all, is a speech regulation directed against the opponents of abortion, and it therefore enjoys the benefit of the ‘ad hoc nullification machine’ that the Court has set in motion to push aside whatever doctrines of constitutional law stand in the way of that highly favored practice.” And in Dobbs, Justice Alito referred to Hill as a “distortion” of First Amendment law. Hill is not long for this world.
Shortly after the Dobbs draft opinion was leaked, Planned Parenthood urged Westchester County (an affluent suburb of New York) to enact an eight-foot buffer zone. The County Attorney acknowledged that Hill may be on the chopping block, but it was still good law. Five days after Dobbs was decided, Westchester County enacted the exact same law at issue in Hill. Debra Vitagliano, who counseled women near abortion clinics, challenged the law. During the litigation, Planned Parenthood called the bubble law “critical” to protect abortion rights, and was “narrowly tailored.” As could be expected, Westchester relied on Hill and the lower courts agreed. The Second Circuit upheld the law on June 21, 2023.
But a funny thing happened three weeks later: Planned Parenthood had a change of heart! On July 10, 2023, Planned Parenthood wrote a letter urging the County to repeal the “bubble” zone law.
Since the passage of the Reproductive Health Care Facilities Access Act last year, we have not seen how the 8-foot bubble zone has been beneficial to patients and guests entering and leaving our health centers. The bubble zone provision of the legislation is unenforceable, and therefore disrupts the integrity of the legislation’s overall ability to achieve its goal of protecting patients of reproductive health care facilities. Repealing the bubble zone provision will, in fact, strengthen the Reproductive Health Care Facilities Act by making the protections of the law more concrete and clearer for all people to understand.
A law that was “critical” and “narrowly” tailed was suddenly no longer “beneficial.” That same day, the National Institute for Reproductive Health also wrote a letter to the County to urge them to repeal the law. What a coincidence!
On July 21, 2023, Vitagliano filed her cert petition. And two weeks later, Westchester repealed the bubble law. Here, we have a naked effort to evade Supreme Court review. Amicus briefs from the Ethics & Public Policy Center and Texas Right to Life/America First spelled out all the details. Indeed, I teased this issue back in a July post.
Westchester has now filed its Brief in Opposition to certiorari. Unsurprisingly, the government contends that the case is moot since the bubble law was repealed. They also argue that the voluntary cessation doctrine should not apply, in part, because even Planned Parenthood opposes re-enacting the law!
Here, the County has repealed the bubble zone provision of Chapter 425; it has not modified it or otherwise kept it alive in some fashion. Further, there is no evidence that the County is considering or otherwise intends to reinstitute the bubble zone provision, and we have been informed that there is no intention of doing so. Indeed, with the benefit of a one-year lookback, it was clear to the County that the bubble zone was not necessary—it had never been enforced, and it would be difficult to do so, leading to confusion over what was or was not permissible under Chapter 425. The repeal was further supported by, inter alia, organizations directly impacted by Chapter 425 (Planned Parenthood) and reproductive-rights advocacy organizations (Choice Matters and the National Institute for Reproductive Health) who confirmed the difficulties with enforcement. [FN7]
FN7: 7 See letters in support from Planned Parenthood, Choice Matters, and the National Institute for Reproductive Health, available at http://tiny.cc/BubbleZoneRepeal.
Let me break this down. Planned Parenthood urged Westchester to repeal the law to avoid Supreme Court review. And now Westchester is citing Planned Parenthood’s lobbying as evidence that the Supreme Court should deny review. Some chutzpah.
Here, I think we are seeing a redux of Acheson Hotels, LLC v. Laufer, which I wrote about in July. During oral argument in Acheson, Chief Justice Roberts highlighted the risk of maneuvering to avoid Supreme Court review. Roberts asked of counsel for Petitioner:
CHIEF JUSTICE ROBERTS: Maybe people will think that’s easy or maybe not. The mootness question of whether or not a plaintiff can moot a case to manipulate the jurisdiction of this Court, I mean, the mootness papers weren’t filed until after the Petitioner’s opening brief. And we certainly have the authority under our precedent to decide, if you have two jurisdictional issues, which one to do first. And in terms of, you know, I think it’s a difficult question as to whether or not somebody, particularly when you have a program of litigation like this around the country by people who may or may not have standing, can manipulate the Court’s jurisdiction by, after the Court’s granted cert, mooting out the case.
And the Chief posed a similar question for the United States as amicus curiae:
You’re confident that the mootness question is easy. Is the government at all concerned about the manipulation of this Court’s jurisdiction when you have—because Ms.—Ms. Laufer, I gather, is not the only person doing this, bringing hundreds of cases around the country, and then, when the Court gets interested in her case, it’s all gone. It’s moot. It doesn’t stop any of the other dozens of people, however many there are, who are doing the same thing. So we may have to come up with another case as soon as this—this one, if it’s—if it’s not addressed, and then they will—that one will be mooted. And, you know, we can’t sort of keep granting cert and having it constantly being mooted with never a determination of whether there’s standing in those variety of cases. I mean, you may think that that’s not necessarily easier or harder than the standing question, but it’s certainly not one that we can just, you know, toss off with the back of our hand, is it?
Roberts is right. Every county that has a “bubble” law will vigorously enforce it until a cert petition is filed, then repeal it. In case after case, abortion advocates will try to manipulate the Court’s jurisdiction. The Court should now allow these shenanigans in Acheson, and should not allow them in Vitagliano.
Or, I have an ever better idea. The Planned Parenthood national organization should urge every jurisdiction to repeal any Hill-style laws because they are not “beneficial.” That option would avoid a lot of unnecessary litigation to say nothing of chilled speech. But of course Planned Parenthood won’t do that. They want these laws to remain in effect unless and until a certiorari petition is filed–which is precisely why the Court should grant review, and sweep Hill into the dustbin of repudiated constitutional principles.
