August 9, 2023

Westchester County's Bubble Zone Has Been Burst

Westchester County's Bubble Zone Has Been Burst

August 9, 2023
Joe Barnas
August 9, 2023

Westchester County's Bubble Zone Has Been Burst

Pro-life sidewalk counselors in Westchester County, New York, are no longer bound by the county’s “floating bubble zone” ordinance.

On Aug. 7, the Westchester County Board of Legislators voted to repeal its unconstitutional eight-foot “floating bubble zone” provision—which has been the primary target of a Thomas More Society lawsuit.

Thomas More Society is representing the national 40 Days For Life, a local vigil group, White Plains 40 Days for Life, and two individual pro-life sidewalk counselors, in the lawsuit against Westchester County—filed in November 2022 . The lawsuit challenged seven abortion-related provisions implemented by the county, including the eight-foot floating bubble zone ordinance.

Westchester County’s floating bubble zone ordinance was a provision that created an eight-foot no-speech zone around a person entering or leaving an abortion facility. The eight-foot bubble zone followed a person entering or leaving the facility. Pro-life sidewalk counselors were strictly prohibited from approaching and counseling pregnant women in need, in the vicinity of abortion facilities. With the eight-foot bubble zone in place, sidewalk counselors were prevented from engaging in their regular activities at abortion facilities, like handing out leaflets and other pro-life literature.

Westchester County’s ordinance flagrantly prevented pro-life sidewalk counselors from exercising their First Amendment right to offer life-affirming alternatives to abortion-minded women exactly where their speech matters most: outside of abortion facilities. Now, pro-life sidewalk counselors are able to advocate for life outside of abortion facilities.

“This is indeed a victory for free speech, and for pro-life advocacy,” said Christopher Ferrara, Thomas More Society Senior Counsel. “The bubble zone was unconstitutional the moment the board passed it.”

The fight is not over in Westchester Co.

While the ordinance has now been repealed, this lawsuit continues forward because the threat of Westchester County’s restrictions on pro-life speech has not yet abated. “We stand ready to put the final nail in its coffin with a petition to the U.S. Supreme Court, if need be, so that it can never be reenacted,” Ferrara added.

Westchester County’s six remaining restrictions on pro-life sidewalk counseling pose further challenges to the First Amendment rights of pro-lifers. Although the floating bubble zone ordinance has been repealed, sidewalk counselors can only carry on with their advocacy for life as long as they merely stand in place as they hand out pro-life literature or share pro-life messages.

Thomas More Society is continuing its challenge of the six other unconstitutional restrictions on pro-life counseling, which are still on the books in Westchester County—as part of a package of local ordinances titled “Chapter 425.” While the floating bubble zone provision was the single most egregious example in Westchester County’s package of restrictions, several other restrictions aim to shut down pro-life speech.

“We have appealed to the Second Circuit the District Court’s refusal to issue a preliminary injunction against those six provisions, and we are proceeding in the District Court to a hearing on a permanent injunction as to those same restrictions,” said Ferrara.

One such discriminatory and free-speech violating restriction is the so-called 25-foot “no follow and harass” zone. This restriction essentially prohibits pro-life sidewalk counselors from walking alongside a pregnant woman—who is entering or leaving an abortion facility—to share their life-affirming message outside the facility.

“The other six provisions were apparently inspired by the vacated decision of Second Circuit Court of Appeals, in People v. Griepp,” Ferrara noted. In People v. Griepp, the court wrongly found that the mere presence of pro-life advocates and their signage on a sidewalk can violate the Freedom of Access to Clinic Entrances Act, or FACE.

Ironically, also due to successful litigation by the Thomas More Society, the Griepp decision was vacated in 2021, and is no longer binding law.

Bursting bubble zones nationwide

Bubble zones of different shapes and sizes have become a go-to restriction on pro-life speech outside of abortion facilities nationwide. Cities and municipalities have enacted bubble and buffer zone ordinances in order to stamp out pro-life sidewalk counseling in the vicinity of abortion facilities—under the guise of “protecting” those entering or leaving.

Now, the constitutionality of bubble zones is finally up in the air. In the Dobbs decision, overturning Roe v. Wade, the U.S. Supreme Court made explicit the current Court’s view on the unconstitutional nature of bubble zones. In the Dobbs majority opinion, the Court wrote that the abortion has “distorted First Amendment doctrines”—citing Hill v. Colorado as the archetypal example. The 2000 decision in Hill upheld the constitutionality of similar bubble zones.

Thomas More Society is currently litigating several cases against similar bubble and buffer zones across the country. This includes a lawsuit against the city of Carbondale, Illinois—where pro-abortion politicians and activists are mobilizing to create an abortion hub for a large portion of the country. In Carbondale, Thomas More Society is representing Coalition Life in challenging the city’s ordinance, which prevents sidewalk counseling around any abortion facility, hospital, or healthcare facility.

Carbondale’s provision implements a buffer zone around any entrance door to a healthcare facility, and then creates an eight-foot bubble zone around anyone inside the buffer zone—preventing pro-life sidewalk counselors from knowingly approaching anyone in the public right of way “for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling.”

“This ordinance is an attempt to silence us and is a direct assault on our civil rights,” said Brian Westbrook, Executive Director of Coalition Life.

The lawsuit against Carbondale is now pending before the Seventh Circuit Court of Appeals. Thomas More Society continues its work in challenging the constitutionality of bubble zones nationwide, leading cases in Westchester County, New York; Carbondale, Illinois; Clearwater, Florida; and Minneapolis, Minnesota.