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  • Writer's pictureElizabeth Slattery

Vitagliano v. County of Westchester, New York

This petition was denied on December 11, 2023.

Why do we care?

The modern Supreme Court tends to err on the side of free speech, even if the speakers are cursing cheerleaders, protestors at military funerals, flag burners, or makers of animal crush videos, just to name a few. As Justice Samuel Alito has explained, "[T]he proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate.'" But one outlier area of First Amendment jurisprudence is speech when abortion is involved.

What's the background?

In Hill v. Colorado (2000), the Court upheld a law that made it illegal to approach within eight feet of another person in public fora outside abortion clinics “for the purpose of . . . engaging in oral protest, education, or counseling,” unless that person consents. Intervening free speech cases have "all but interred" the holding in Hill, rendering it “an aberration in [the Court's] case law." City of Austin v. Reagan National Advertising of Austin, LLC (Thomas, J., joined by Gorsuch & Barrett, JJ., dissenting).

Following the Court's ruling in Dobbs v. Jackson Women's Health Organization (2022) that the right to abortion is not a fundamental right, Westchester County, New York passed a "bubble zone" law nearly identical to the one upheld in Hill. The law also prohibits obstructing access, unwanted physical contact, harassing, making threats, and otherwise interfering with a covered facility’s operations. Violations are punishable by fines and imprisonment.

How did this case get to SCOTUS?

Debra Vitagliano, a Westchester resident who wishes to engage in peaceful sidewalk counseling outside abortion clinics, brought a pre-enforcement challenge only to the ban on sidewalk counseling.

The U.S. District Court for the Southern District of New York dismissed Vitagliano's complaint for lack of standing to bring a pre-enforcement challenge and held that, in any event, Hill v. Colorado foreclosed her First Amendment claim.

The U.S. Court of Appeals for the Second Circuit vacated the district court's ruling on standing, finding that Vitagliano's complaint pleaded sufficient facts to support a credible threat of prosecution, but affirmed the judgment on the merits. The Second Circuit explained in an unsigned opinion that Hill remains controlling precedent and that only the Supreme Court may overrule its own decisions. Vitagliano petitioned the Supreme Court for review.

What's the question presented to the Court?

Whether the Court should overrule Hill v. Colorado?

Click here to view the docket, including the petition for a writ of certiorari, amicus briefs, and a brief in response (when filed).


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