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.
