The Unfortunate Legacy of Hill v. Colorado


P.O. Box 2105, Napa, California 94558 — (707) 224-6675


Contact: Dana Cody, Executive Director
(916) 727-4396

On December 1, LLDF filed an amicus brief urging the U.S. Supreme Court to take up the case of a Massachusetts law severely restricting pro-life speech activity.

McCullen v. Coakley, No. 09-592, challenges the constitutionality of a 2007 law making it a crime to “enter or remain” on public sidewalks within 35 feet of abortion clinics. The law contains exceptions for clinic patients, law enforcement, persons passing through the zone, and clinic employees “acting in the scope of their employment.” Last July, the First Circuit Court of Appeals ruled that the law is constitutional, and the pro-life plaintiffs filed a petition in the Supreme Court.

LLDF filed the amicus curiae (“friend of the court”) brief on behalf of itself and Pastor Walter Hoye, who earlier this year was convicted of violating an Oakland ordinance limiting speech around abortion clinics.

The brief first takes issue with the law’s focusing solely on abortion clinics. The First Circuit’s justification for this narrow focus, namely that “abortion protesters are particularly aggressive and patients particularly vulnerable” at abortion clinics, is itself an unconstitutional content- and viewpoint-based distinction. As long as cities and states can single out abortion clinic locales for special speech restrictions, the brief warns, they will impose more stringent restrictions than they would dare do if the law were more generally applied.

The brief also addresses the First Circuit’s “staggeringly counterintuitive” conclusion that the law’s exception for clinic workers is neutral and does not distinguish between different ideologies. Drawing on LLDF’s and Hoye’s experience with the Oakland law, the brief shows that clinic employees and escorts invariably use their privileged position under the law to get across their ideological message of urging women to ignore sidewalk counselors offering alternatives and instead enter the clinic for abortions.

“Ten years has passed since the Supreme Court’s disastrous decision in Hill v. Colorado, upholding Colorado’s ‘Mother May I’ law,” says LLDF Legal Director Katie Short. “It is time for the Court to face up to the damage that Hill wrought and restore the full protection of the First Amendment to pro-life advocates.”

Life Legal Defense Foundation was established in 1989, and is a non-profit organization composed of attorneys and other concerned citizens, committed to the sanctity of human life. For more information, call Dana Cody at 916.727.4396.



Read the brief as submitted to the Court