DENVER — A Denver woman is mounting a new legal challenge to a longstanding Colorado law that prohibits anti-abortion activists from approaching within eight feet of people outside abortion clinics.
The law was crafted in 1993 by Colorado lawmakers to curb so-called “sidewalk counseling” — last-minute, one-on-one appeals by protesters to people seeking abortions outside the doors of an abortion provider. A divided U.S. Supreme Court upheld the law in 2000, with the majority of justices rejecting arguments that it violated anti-abortion protesters’ First Amendment rights.
But the U.S. Supreme Court justices last year opened the door for a new free speech challenge when the court stripped away the constitutional right to abortion, attorneys for plaintiff Wendy Faustin argued in a lawsuit filed Thursday in U.S. District Court for the District of Colorado.
A single line in the historic 213-page Dobbs opinion cites the court’s prior ruling on the Colorado law as one that “distorted First Amendment doctrines.”
Faustin’s attorneys argue that she should be allowed to closely approach people as they go into abortion clinics in metro Denver in order “‘to forge, in the last moments before another of her sex is to have an abortion, a bond of concern and intimacy that might enable her to persuade the woman to change her mind and heart,’ and she simply cannot do this by shouting from eight feet away,” the lawsuit reads, borrowing from the late Justice Antonin Scalia’s dissenting opinion in the 2000 ruling, which was decided 6-3 in Colorado’s favor.
In the original case, the justices found that the state’s eight-foot bubble law — which kicks in only within 100 feet of a health care provider — was constitutional because it regulated where speech could occur, rather than the speech itself. In two dissents, Scalia, Justice Clarence Thomas and then-Justice Anthony Kennedy argued that the eight-foot buffer law created a de facto restriction on free speech.
Faustin’s lawsuit largely echos those arguments, and says that the 2000 Supreme Court decision was “wrongly decided” and should be overturned. Faustin is challenging both Denver’s city ordinance and the state law, which both require the eight-foot bubble.
“Ms. Faustin feels she is called by God to defend the unborn in any way that she can and that one of the most effective ways of doing so is by peacefully approaching women entering abortion clinics to try to educate them about the nature of the unborn child developing inside them and inform them about alternatives to abortion,” the complaint reads.
Anti-abortion activists who violate the eight-foot rule can be fined up to $300 and or be sentenced to up to 10 days in jail.
The lawsuit names as defendants Gov. Jared Polis, Attorney General Phil Weiser, 18th Judicial District Attorney John Kellner, Denver District Attorney Beth McCann, Denver City Attorney Kerry Tipper and the police chiefs of the Englewood and Denver departments, which enforce the law.
“We are aware of the lawsuit through media inquiries only and look forward to defending our role in upholding the law in Colorado, which includes protecting abortion access and reproductive rights for all Denverites,” said Melissa Sisneros, a spokeswoman for the Denver City Attorney’s Office.
Other defendants in the case either did not return requests for comment or declined to comment.
Faustin is represented by attorneys based in Washington, D.C., and attorneys with the First Liberty Institute in Texas, a nonprofit Christian organization focused on religious freedom.
Roger Byron, senior counsel for First Liberty Institute, said Monday that the 2000 U.S. Supreme Court decision was “incompatible with basic free speech doctrine.” Byron emphasized that the Dobbs opinion singled the Colorado case out as problematic.
“The one case it used as the poster child of bad First Amendment law was Hill v. Colorado, the very law we’re challenging,” he said.
Dani Newsum, director of strategic partnerships at Cobalt, a nonprofit pro-abortion organization, said Colorado’s bubble law has already survived multiple legal challenges.
“Patients should have a right to access health care, including abortion care, without being harassed,” Newsum said in an emailed statement. “At a time when violence, threats and harassment against abortion clinics, patients and providers is escalating, patients should be left alone to get the health care they need and deserve in peace.”
Denver Post reporter Saja Hindi contributed to this report.