Amicus Curiae Brief — Debra A. Vitagliano, Petitioner v. County of Westchester, New York

Supreme Court briefAug 24, 2023

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No. 23-74

In the Supreme Court of the

United States

DEBRA A. VITAGLIANO,

PETITIONER,

COUNTY OF WESTCHESTER, NEW YORK,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR HUMAN COALITION,

FEMINISTS CHOOSING LIFE OF NEW YORK,

FREDERICK DOUGLASS FOUNDATION, AND

NEW WAVE FEMINISTS AS AMICI CURIAE

IN SUPPORT OF PETITIONER

HEATHER GEBELIN HACKER

Counsel of Record

HACKER STEPHENS LLP

108 Wild Basin Rd., Suite 250

Austin, Texas 78746

heather@hackerstephens.com

(512) 399-3022

QUESTION PRESENTED

In Hill v. Colorado, 530 U.S. 703 (2000), this Court

upheld a law that banned approaching 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. On the

day it was decided, members of this Court recognized

that Hill stands “in stark contradiction of the constitutional principles [the Court] appl[ies] in all other contexts” outside abortion. Id. at 742 (Scalia, J., dissenting);

see also id. at 765 (Kennedy, J., dissenting) (Hill “contradicts more than a half century of well-established

First Amendment principles”). Three Justices have since

recognized that intervening precedents have “all but interred” Hill’s analysis, leaving it “an aberration in [the

Court’s] case law.” City of Austin v. Reagan Nat’l Advert. of Austin, LLC, 142 S. Ct. 1464, 1484, 1491 (2022)

(Thomas, J., joined by Gorsuch & Barrett, JJ., dissenting). And the Court has observed that Hill was a “distort[ion]” of “First Amendment doctrines.” Dobbs v.

Jackson Women’s Health Org., 142 S. Ct. 2228, 2276 &

n.65 (2022).

In June 2022, Westchester County passed a law materially identical to the one upheld in Hill. The Second

Circuit upheld the law based solely on Hill’s continued

precedential force.

The question presented is whether the Court should

overrule Hill.

(I)

TABLE OF CONTENTS

Page

Question presented .......................................................... I

Table of authorities .......................................................III

Interest of amici curiae .................................................. 1

Summary of argument..................................................... 4

Argument.......................................................................... 5

I. Hill v. Colorado is an aberration in First

Amendment jurisprudence and should be

overruled.............................................................. 5

A. History and tradition support the protection

of expressive activity like sidewalk

counseling. ....................................................... 6

B. Hill contradicts this Court’s longstanding

precedent. ........................................................ 7

II. Hill protects laws that harm women by

preventing them from receiving wanted and

beneficial information. ...................................... 11

A. The unique nature of the abortion procedure

underscores the need for women to receive

full and accurate information about the

implications of abortion. ............................... 11

B. Data shows that women need and appreciate

having more information to inform their

choice, and an informed choice is critical to

avoiding harm. .............................................. 12

III. Laws sanctioned by Hill are rooted in the

sexist assumption that women are too fragile to

hear alternative viewpoints. ............................. 20

Conclusion ...................................................................... 24

(II)

III

TABLE OF AUTHORITIES

Page(s)

Cases:

303 Creative LLC v. Elenis,

143 S. Ct. 2298 (2023)............................................... 22

Boos v. Barry,

485 U.S. 312 (1988)............................................... 6, 23

Carlson v. California,

310 U.S. 106 (1940)..................................................... 9

City of Austin v. Reagan Nat’l Advert. of

Austin, LLC,

142 S. Ct. 1464 (2022)................................................. I

City of Ladue v. Gilleo,

512 U.S. 43 (1994)....................................................... 9

Cohen v. California,

403 U.S. 15 (1971)..................................................... 21

Cruzan v. Dir., Mo. Dep’t of Health,

497 U.S. 261 (1990)................................................... 11

Dobbs v. Jackson Women’s Health Org.,

142 S. Ct. 2228 (2022).................................. I, 4, 10, 11

Erznoznik v. Jacksonville,

422 U.S. 205 (1975)....................................... 10, 21, 22

Frisby v. Schultz,

487 U.S. 474 (1988)................................................... 21

Gonzales v. Carhart,

550 U.S. 124 (2007)....................................... 12, 16, 18

Hague v. CIO,

307 U.S. 496 (1939)..................................................... 6

Harris v. McRae,

448 U.S. 297 (1980)................................................... 11

Hill v. Colorado,

530 U.S. 703 (2000)................ I, 4, 9, 10, 15, 21, 22, 23

Lovell v. City of Griffin,

303 U.S. 444 (1938)................................................. 7, 8

Martin v. City of Struthers, Ohio,

319 U.S. 141 (1943)..................................................... 9

McCullen v. Coakley,

573 U.S. 464 (2014)..................................................... 7

Nat’l Socialist Party of Am. v. Village of Skokie,

432 U.S. 43 (1977)..................................................... 21

Planned Parenthood of Cent. Mo. v. Danforth,

428 U.S. 52 (1976)..................................................... 12

Planned Parenthood of Se. Pa. v. Casey,

505 U.S. 833 (1992)....................................... 11, 12, 18

Schenck v. Pro-Choice Network of W. New York,

519 U.S. 357 (1997)..................................................... 6

Schneider v. State of New Jersey, Town of

Irvington,

308 U.S. 147 (1939)................................................. 7, 8

Snyder v. Phelps,

562 U.S. 443 (2011)................................................... 21

Texas v. Johnson,

491 U.S. 397 (1989)................................................... 21

Thornhill v. Alabama,

310 U.S. 88 (1940)................................................... 8, 9

United States v. Grace,

461 U.S. 171 (1983)..................................................... 6

Whole Woman’s Health v. Paxton,

10 F.4th 430 (5th Cir. 2021) ..................................... 18

Statutes:

18 U.S.C. §248 .............................................................. 23

18 U.S.C. §248(d)(1) ..................................................... 23

N.Y. Penal Law §240.70(1) .......................................... 23

Other Authorities:

ACOG Committee Op. No. 554, Reproductive

and Sexual Coercion (February 2013;

Reaffirmed 2019), https://www.acog.org/

clinical/clinical-guidance/committeeopinion/articles/2013/02/reproductive-andsexual-coercion ......................................................... 19

Amanda Foreman, The Power of Pamphlets: A

Brief History, Wall. St. J. (Oct. 19, 2017),

https://www.wsj.com/articles/the-power-ofpamphlets-a-brief-history-1508426138 ................. 6, 7

B. Bailyn, The Ideological Origins of the

American Revolution (1967) ................................... 7

Coyle, C.T., et al., Inadequate preabortion

counseling and decision conflict as predictors

of subsequent relationship difficulties and

psychological stress in men and women, 16(1)

Traumatology 16–30 (2010),

https://psycnet.apa.org/doiLanding?doi=10.11

77%2F1534765609347550 ........................................ 15

David C. Reardon & Tessa Longbons, Effects of

Pressure to Abort on Women’s Emotional

Responses and Mental Health, 15(1) Cureus

(Jan. 31, 2023), available at

https://perma.cc/W6SX-KS78 ................................. 19

David C. Reardon et al., Deaths associated with

pregnancy outcome: a record linkage study of

low income women, 95 Southern Med. J. 834–

41 (Aug. 2002) ........................................................... 15

Ericka Anderson, Greater Level of Desperation:

As COVID-19 Rages, Pregnancy Centers See

Surge in Demand, USA Today (Aug. 9, 2020),

available at https://perma.cc/ZNS4-2D2X ............ 13

Guttmacher Inst., Women’s Reasons for Having

an Abortion, available at

https://web.archive.org/web/20220128140415/h

ttps:/www.guttmacher.org/perspectives50/wo

mens-reasons-having-abortion ............................... 13

Hannah Howard, New Study: Elevated Suicide

Rates Among Mothers After Abortion,

Charlotte Lozier Inst. (Sept. 10, 2019),

https://lozierinstitute.org/new-study-elevatedsuicide-rates-among-mothers-afterabortion/ ............................................................. 15, 16

Ilaria Lega, et al., Maternal suicide in Italy,

Archives of Women’s Mental Health 23, 199–

206 (2020) https://doi.org/10.1007/s00737-01900977-1 ...................................................................... 16

Laura J. Lederer & Christopher A. Wetzel, The

Health Consequences of Sex Trafficking and

Their Implications for Identifying Victims in

Healthcare Facilities, 23 Annals Health L. 61

(2014),

https://lawecommons.luc.edu/cgi/viewcontent.

cgi?article=1410&context=annals. .................. 19, 20

Lawrence B. Finer, et al., Reasons U.S. Women

Have Abortions: Quantitative and

Qualitative Perspectives, 37 Perspectives on

Sexual and Reprod. Health 110–18 (2005),

available at https://perma.cc/7Z6Z-9KRC ............ 13

VII

M. Gissler, et al., Suicides after pregnancy in

Finland, 1987-94: register linkage study, 313

British Med. J. 1431–34 (Dec. 1996)

https://www.ncbi.nlm.nih.gov/pmc/articles/PM

C2352979/pdf/bmj00571-0021.pdf ........................... 16

O. Carter Snead, The (Surprising) Truth About

Schiavo: A Defeat for the Cause of Autonomy,

22 Const. Comment. 383, 388 (2005) ....................... 11

Tr. Transcript, Vol. III of V, at 94:24-95:20, 96:78, Whole Woman’s Health v. Hellerstedt, No.

1:14-cv-00284-LY (W.D. Tex. Aug. 21, 2014),

ECF No. 195 ............................................................ 17

U.S. House of Reps. Judiciary Cmte., Jim

Jordan Launches Congressional Inquiry Into

FBI Raid on Mark Houck, DOJ’s Political

Enforcement of FACE Act, (Oct. 7, 2022),

https://judiciary.house.gov/media/pressreleases/jim-jordan-launches-congressionalinquiry-into-fbi-raid-on-mark-houck-dojs ............. 23

INTEREST OF AMICI CURIAE

Amici curiae are providers of pregnancy-related

counseling and social services, feminist organizations,

and organizations engaged in expressive activities near

abortion clinics. 1

Human Coalition is a nonprofit organization committed to rescuing children, serving families, and making

abortion unthinkable and unnecessary by offering pregnant mothers life-affirming counsel and tangible, needed

services. Human Coalition operates its own specialized

women’s care clinics and virtual clinics in major cities

across the country, caring for women who face a crisis

pregnancy as well as women who chose abortion. Human

Coalition has a strong interest in ensuring that women

have adequate information to make an informed choice

about abortion. The staff and volunteers at Human Coalition’s clinics have seen firsthand the harm that results

when women lack important information about the abortion procedure, its mental and physical effects, and information about available services to support women facing

an unplanned pregnancy.

Feminists Choosing Life of New York (FCLNY) is

a human rights coalition that embraces and promotes

pro-life feminism and the consistent life ethic. FCLNY’s

public advocacy connects the root causes of violence, inequality, and the social forces that dehumanize, and calls

for life-affirming resources, especially for marginalized

populations. FCLNY believes abortion oppresses rather

Counsel of record received timely notice of the intent to file

the brief under Supreme Court Rule 37.2. Pursuant to Rule 37.6,

undersigned counsel certifies that no person other than amici curiae or their counsel authored the brief in whole or in part nor made

a monetary contribution intended to fund the preparation or submission of the brief.

than empowers women. FCLNY is pro-woman and prolife, and recognizes that women have agency, and the

right to receive all information relevant to life-impacting

decisions, which abortion clinic bubble zone restrictions

substantially curtail.

The Frederick Douglass Foundation (“FDF”) is a

national grassroots education and public policy organization with local chapters across the United States. FDF

supports strengthening the Black Family. Reflecting its

namesake’s focus on promoting the long-term interests

of African-Americans and the equality of all persons, the

FDF is pro-life and speaks out against the damage that

the abortion epidemic has disproportionately wreaked on

the African-American community.

FDF has an interest in exposing the racist and eugenic history of the abortion movement, which has had

catastrophic effects on their communities. FDF members were arrested for attempting to write “Black PreBorn Lives Matter” in washable chalk on public sidewalks outside Planned Parenthood’s Carole Whitehill

Moses Center in Washington D.C., though the city permitted painted street art that omitted the word “PreBorn.” FDF therefore knows firsthand how laws like

Westchester County’s Reproductive Health Care Facilities Access Act squelch protected speech and are used to

weaponize law enforcement authority against disfavored

viewpoints.

New Wave Feminists is a secular, non-partisan nonprofit dedicated to promoting the consistent life ethic,

which recognizes the dignity of all human life from womb

to tomb. NWF does this by promoting systemic change

in areas like immigration, racial justice, and human

trafficking, while providing prenatal and postnatal resources for women. NWF seeks to end the dehumanization and insufficient support that leads to the coercion or

exploitation of marginalized and vulnerable groups. This

case concerns NWF because it implicates their community members’ abilities to offer resources and education

to women seeking abortion, which empowers women for

the wellbeing of themselves and their children alike.

SUMMARY OF ARGUMENT

Hill v. Colorado is an aberration in the Court’s First

Amendment jurisprudence. It sanctions the restriction

of historically protected modes of speech—one-on-one

communication and leafleting—in an archetypical public

forum—the public sidewalk. The only possible explanations for the Court’s detour from precedent is the majority’s paternalistic belief that women are so fragile that

they need protection from speech they may not want to

hear, and the fact that this speech occurs outside abortion clinics.

This detour was misguided on several levels. First, it

contradicts bedrock constitutional principles and “distort[ed]” First Amendment law, as this Court has already recognized. Dobbs, 142 S. Ct. at 2276 (citing Hill,

530 U.S. at 741–42 (Scalia, J., dissenting), id. at 765 (Kennedy, J., dissenting)).

Second, it provides cover for laws like Westchester

County’s that actually harm the women they seek to protect. Informed consent is essential for any medical procedure, and as this Court has recognized repeatedly, it is

even more critical in the context of abortion, where not

one, but two, lives are at stake. Evidence shows that

women want more information when making an abortion

decision, especially about resources for the economic and

social concerns leading many women to feel that they

have no choice but abortion. And evidence also demonstrates that when a woman has incomplete information

about abortion, it can have devastating consequences.

Women do not receive all relevant information at abortion clinics, so sidewalk counselors are vital to ensuring

that women can make informed decisions.

Third, the rest of the Court’s First Amendment precedents acknowledge that robust protection of speech

sometimes means people must encounter speech they

disagree with or that offends them. While the Hill majority apparently found it chivalrous to swoop in to rescue helpless damsels from the distress of potential offense, the Amici feminist groups—and most women in

2023—would object to being patronized in such a fashion.

That the Court went to these lengths to block only

women seeking abortion from receiving alternative information, while telling virtually everyone else to grow a

thicker skin, reveals the exceptionally condescending

(and content discriminatory) nature of the ruling.

Hill’s blatant detour from the First Amendment, its

paternalistic underpinnings, and the harmful laws that it

continues to spawn require that it be overruled.

ARGUMENT

Hill v. Colorado is an aberration in First

Amendment jurisprudence and should be

overruled.

Petitioner seeks to engage “in sidewalk counseling—

approaching women on their way into the clinic” on public sidewalks, “speaking with them about their pregnancies, and distributing pamphlets containing information

about abortion and its alternatives.” Pet. at 5. She is prevented from doing so by the Westchester County “Reproductive Health Care Facilities Access Act.” Pet. at 5–

6. The Act is modeled on the law upheld by Hill. Pet. at

7. But for Hill, the Act would be unconstitutional because

it prohibits historically significant and protected speech

in an archetypical public forum. Hill departs from the

rest of the Court’s First Amendment precedent and

should be overruled.

A. History and tradition support the protection

expressive

activity

sidewalk

counseling.

Public streets and sidewalks are “traditional public

fora that ‘time out of mind, have been used for purposes

of assembly, communicating thoughts between citizens,

and discussing public questions.’” Boos v. Barry, 485

U.S. 312, 318 (1988) (quoting Hague v. CIO, 307 U.S. 496,

515 (1939)). “In such places, which occupy a ‘special position in terms of First Amendment protection,’ the government’s ability to restrict expressive activity ‘is very

limited.’” Id. (quoting United States v. Grace, 461 U.S.

171, 177, 180 (1983)).

And “[l]eafletting and commenting on matters of public concern”—the exact expression Petitioner wishes to

engage in, see Pet. at 12–13—are “classic forms of speech

that lie at the heart of the First Amendment, and speech

in public areas is at its most protected on public sidewalks, a prototypical example of a traditional public forum.” Schenck v. Pro-Choice Network of W. New York,

519 U.S. 357, 377 (1997) (citing Boos, 485 U.S. at 322,

Grace, 461 U.S. at 180). History teems with examples of

how the distribution of broadsides, leaflets, and pamphlets were critical to communicating thoughts and information and influencing public opinion. 2 Thomas

See, e.g., Amanda Foreman, The Power of Pamphlets: A Brief

History, Wall. St. J. (Oct. 19, 2017), https://www.wsj.com/articles/the-power-of-pamphlets-a-brief-history-1508426138.

Paine’s “Common Sense” helped to inspire the Revolution, 3 along with similar publications:

It was in this form—as pamphlets—that much of

the most important and characteristic writing of

the American Revolution appeared. For the Revolutionary generation, as for its predecessors

back to the early sixteenth century, the pamphlet

had peculiar virtues as a medium of communication. Then, as now, it was seen that the pamphlet

allowed one to do things that were not possible in

any other form.

McCullen v. Coakley, 573 U.S. 464, 489 (2014) (quoting

B. Bailyn, The Ideological Origins of the American Revolution 2 (1967)). Quite simply, pamphlets are “historical

weapons in the defense of liberty.” Schneider v. State of

New Jersey, Town of Irvington, 308 U.S. 147, 162 (1939).

B. Hill contradicts this Court’s longstanding

precedent.

1. This Court has held for many years that the First

Amendment protects the expression Petitioner wishes to

engage in: the right to hand out leaflets and information

in public fora. In Lovell v. City of Griffin, 303 U.S. 444

(1938), the Court invalidated an ordinance forbidding the

distribution of literature without a permit. The Court

noted:

[t]he liberty of the press is not confined to newspapers and periodicals. It necessarily embraces

pamphlets and leaflets. These indeed have been

historic weapons in the defense of liberty, as the

pamphlets of Thomas Paine and others in our own

Id.; see also Lovell v. City of Griffin, 303 U.S. 444, 452 (1938).

history abundantly attest. The press in its historic

connotation comprehends every sort of publication which affords a vehicle of information and

opinion. What we have had recent occasion to say

with respect to the vital importance of protecting

this essential liberty from every sort of infringement need not be repeated.

Id. at 452 (citations omitted).

One year later, in Schneider, the Court held that a

series of municipal ordinances prohibiting the distribution of handbills on public streets to prevent littering

were unconstitutional. While citizens may not enjoy a

right to force an unwilling person to accept a leaflet, they

do have a protected right to tender it. 308 U.S. at 160.

This is especially so on streets and sidewalks: “[T]he

streets are natural and proper places for the dissemination of information and opinion; and one is not to have the

exercise of his liberty of expression in appropriate places

abridged on the plea that it may be exercised in some

other place.” Id. at 163.

One year after Schneider, the Court again emphasized the protected nature of distributing literature on

public sidewalks in Thornhill v. Alabama, 310 U.S. 88

(1940). The Court rejected a statute that prohibited “loitering or picketing” near a business, which was evidently

aimed at labor protestors. Id. at 91. Such a statute prohibited “whatever the means used to publicize the facts

of a labor dispute, whether by printed sign, by pamphlet,

by word of mouth or otherwise … so long as it occurs in

the vicinity of the scene of the dispute.” Id. at 101. The

Court recognized that safeguarding the rights of individuals to engage in these activities in that location “is essential to the securing of an informed and educated

public opinion with respect to a matter which is of public

concern.” Id. at 104.

The Court underscored this holding with its opinion

in Carlson v. California: “[P]ublicizing the facts of a labor dispute in a peaceful way through appropriate

means, whether by pamphlet, by word of mouth or by

banner, must now be regarded as within that liberty of

communication which is secured to every person by the

Fourteenth Amendment against abridgment by a state.”

310 U.S. 106, 113 (1940). And a few years later, the Court

held that door-to-door distribution of literature was also

protected by the First Amendment. Martin v. City of

Struthers, Ohio, 319 U.S. 141 (1943). The Court has since

rejected other laws that foreclose “a venerable means of

communication that is both unique and important.” City

of Ladue v. Gilleo, 512 U.S. 43, 54 (1994).

2. Despite this history and tradition, Hill upheld a

law that has spawned many others like the one at issue—

a law that prohibits sidewalk counseling, which amounts

to one-on-one speech to others and distributing literature on a public sidewalk. See Pet. at 12–13. In doing so,

the Court carved out an exception to its venerable First

Amendment jurisprudence for pro-life speech near abortion clinics, permitting undeniably content-based restriction of speech in a quintessential public forum. As

Justice Kennedy noted in dissent, recounting many of

the cases above, “[i]t must be remembered that the whole

course of our free speech jurisprudence, sustaining the

idea of open public discourse which is the hallmark of the

American constitutional system, rests to a significant extent on cases involving picketing and leafletting.” 530

U.S. at 781 (Kennedy, J., dissenting).

Yet in Hill, the Court made an exception based on the

“fictitious” “right to be left alone” or to be protected from

an unwanted message. 530 U.S. at 750 (Scalia, J., dissenting); id. at 717–18. This is despite the Court’s otherwise

consistent holdings, and the “universally understood

state of First Amendment law,” that “the Constitution

does not permit government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer.”

Erznoznik v. Jacksonville, 422 U.S. 205, 210 (1975).

Hill’s justification was to “protect distraught women

who are embarrassed, vexed, or harassed as they attempt to enter abortion clinics.” Hill, 530 U.S. at 777

(Kennedy, J., dissenting). But the majority admitted that

“[t]here was no evidence …that the ‘sidewalk counseling’

conducted by petitioners in [that] case was ever abusive

or confrontational.” Id. at 710. Hill still sanctioned

prophylactic action based on the unsupported assumption “that most citizens approaching a health care facility

are unwilling to listen to a fellow citizen’s message and

that face-to-face communications will lead to lawless behavior within the power of the State to punish.” Id. at 778

(Kennedy, J., dissenting).

As this Court recently acknowledged (though understated), this was a “distort[ion of] First Amendment doctrines.” Dobbs, 142 S. Ct. at 2276 (citing Hill, 530 U.S. at

741–42 (Scalia, J., dissenting), id. at 765 (Kennedy, J.,

dissenting)). The Court should take this opportunity to

remove this “abortion distortion” from its First Amendment jurisprudence.

II. Hill protects laws that harm women by

preventing them from receiving wanted and

beneficial information.

A. The unique nature of the abortion procedure

underscores the need for women to receive full

and accurate information about the

implications of abortion.

Patients are entitled to receive full information about

a proposed medical procedure so that they can intelligently and voluntarily consent to the procedure. This is

“the cornerstone of modern biomedical ethics.” O. Carter

Snead, The (Surprising) Truth About Schiavo: A Defeat

for the Cause of Autonomy, 22 Const. Comment. 383, 388

(2005). The Court has recognized that this principle is so

fundamental, it has constitutional dimensions. Cruzan v.

Dir., Mo. Dep’t of Health, 497 U.S. 261, 269 (1990). The

patient must also have capacity and must make the decision freely and without coercion. Id. at 280.

Informed consent is even more critical in the abortion

context because of the unique nature of the procedure

and its impact on not one, but two, lives. As this Court

acknowledges, “[a]bortion is inherently different from

other medical procedures, because no other procedure

involves the purposeful termination of a potential life.”

Harris v. McRae, 448 U.S. 297, 325 (1980); accord Dobbs,

142 S. Ct. at 2243 (“[A]bortion is fundamentally different,

as both Roe and Casey acknowledged, because it destroys what those decisions called ‘fetal life’ and what the

law now before us describes as an ‘unborn human being.’”); Planned Parenthood of Se. Pa. v. Casey, 505 U.S.

833, 852 (1992) (“Abortion is a unique act. It is an act

fraught with consequences for others: for the woman

who must live with the implications of her decision …

and, depending on one’s beliefs, for the life or potential

life that is aborted.”).

This Court has also repeatedly recognized the importance of ensuring abortion decisions are fully informed: “The decision to abort, indeed, is an important,

and often a stressful one, and it is desirable and imperative that it be made with full knowledge of its nature and

consequences.” Planned Parenthood of Cent. Mo. v.

Danforth, 428 U.S. 52, 67 (1976). “Whether to have an

abortion requires a difficult and painful moral decision. . . . The State has an interest in ensuring so grave a

choice is well informed.” Gonzales v. Carhart, 550 U.S.

124, 159 (2007) (citation omitted).

Indeed, even before Dobbs, this Court upheld laws

that go beyond simply informing a woman of the medical

risks of an abortion to her, but also explaining the truth

about her unborn child, its development, and the availability of child support and state services to support the

mother and her child. “In attempting to ensure that a

woman apprehend the full consequences of her decision,

the State furthers the legitimate purpose of reducing the

risk that a woman may elect an abortion, only to discover

later, with devastating psychological consequences, that

her decision was not fully informed.” Casey, 505 U.S. at

882.

B. Data shows that women need and appreciate

having more information to inform their

choice, and an informed choice is critical to

avoiding harm.

1. Because of their work with hundreds of thousands

of women, Amici are familiar with the negative consequences the Court recognized when a woman lacks

information relevant to her abortion decision. Amici

seek to reach women in the critical period after discovering an unplanned pregnancy but before undergoing

abortion because statistics show that most women would

choose to keep their babies if they had additional information or resources. The reality is that 76% of pregnant

women seeking abortion report that they would choose

to parent if their life circumstances were different. 4 Data

from the pro-choice Guttmacher Institute supports this

statistic. Quantitative data from two surveys show that

life circumstances such as economic status are the main

reasons women cite for choosing abortion, and qualitative data from in-depth interviews with women who

chose abortion shows that they “typically felt that they

had no other choice.” 5

Amici, and sidewalk counselors like Petitioner, seek

to ensure that women do have a genuine choice by

providing services aimed at addressing the circumstances that lead many women to believe that abortion is

the only answer. Sidewalk counselors like Petitioner often seek to direct women to clinics and organizations like

Amici’s, where they will receive additional information

and resources.

Ericka Anderson, Greater Level of Desperation: As COVID-19

Rages, Pregnancy Centers See Surge in Demand, USA Today (Aug.

9, 2020), available at https://perma.cc/ZNS4-2D2X.

Guttmacher Inst., Women’s Reasons for Having an Abortion,

available at https://web.archive.org/web/20220128140415/https:/

www.guttmacher.org/perspectives50/womens-reasons-havingabortion (citing Lawrence B. Finer, et al., Reasons U.S. Women

Have Abortions: Quantitative and Qualitative Perspectives, 37

Perspectives on Sexual and Reprod. Health 110–18 (2005), available

at https://perma.cc/7Z6Z-9KRC).

Human Coalition’s brick-and-mortar clinics provide

women contemplating abortion with free pregnancy

tests and ultrasounds, and their virtual clinics connect

women with these resources and provide referrals for

prenatal care and STI testing. Amici also provide material assistance to women, including baby supplies like diapers, formula, car seats, clothing, and breast pumps.

Human Coalition also helps women enroll in local, state,

and federal programs like Medicaid, CHIP, TANF,

SNAP, WIC, and Section 8 housing.

Even women who ultimately decide to get an abortion

appreciate having the information provided by organizations like Amici. In a recent internal exit survey among

women who visited their clinics, which includes women

who ultimately chose to abort, Human Coalition found

that 96.8% (or 3301 out of 3408 women surveyed in the

last year) either “agree” or “strongly agree” that they

would recommend Human Coalition’s services to a

friend. 98.6% of respondents agreed that Human Coalition provided them with all the information they needed

to make an informed decision about their pregnancy.

And over 99% of respondents agreed that they felt cared

for and respected by the staff.

Amici reach out to women through advertising and

personal connections, but a critical time to reach women

contemplating abortion—and indeed possibly the last opportunity to do so—is as the woman approaches the

abortion clinic. As Justice Scalia explained, this is a critical time and place for the information to be imparted

and offers of help to be given, and being kept several feet

away as the Act requires impedes the message of compassion and support individuals like Petitioner intend to

convey “in the last moments before another of her sex is

to have an abortion.” Hill, 530 U.S. at 757 (Scalia, J., dissenting). As to the particular message of support and

compassion that sidewalk counselors wish to impart, as

Justice Kennedy acknowledged, the area near abortion

clinic entrances “is not just the last place where the message can be communicated. It likely is the only place.” Id.

at 789 (Kennedy, J., dissenting).

2. Data also tells us what happens when women are

not informed as to the implications of their choice: they

suffer. Women who report that their pre-abortion counseling was inadequate are more likely to report “relationship problems, symptoms of intrusion, avoidance, and

hyperarousal, and meeting the full diagnostic criteria for

posttraumatic stress disorder.” 6

Data also shows that many women ultimately regret

their abortions, which can lead to serious consequences.

Women who have abortions have a greater risk of suicide. In one study of 173,279 low-income women in California, researchers “found that women who underwent

abortions had nearly double the chance of dying in the

following two years, and ‘had a 154 percent higher risk

of death from suicide’ than if they gave birth.” 7 Foreign

studies paint a bleaker picture. When Italian researchers

Coyle, C.T., et al., Inadequate preabortion counseling and decision conflict as predictors of subsequent relationship difficulties

and psychological stress in men and women, 16(1) Traumatology

16–30 (2010), https://psycnet.apa.org/doiLanding?doi=10.1177%2

F1534765609347550.

Hannah Howard, New Study: Elevated Suicide Rates Among

Mothers After Abortion, Charlotte Lozier Inst. (Sept. 10, 2019),

https://lozierinstitute.org/new-study-elevated-suicide-rates-amongmothers-after-abortion/ (citing David C. Reardon et al., Deaths associated with pregnancy outcome: a record linkage study of low income women, 95 Southern Med. J. 834–41 (Aug. 2002)).

studied suicide rates “during pregnancy or within 1 year

after giving birth,” they concluded that “of the maternal

suicides [studied]”—the suicide rate of women who underwent an abortion “was more than double the suicide

rate of women who gave birth.” 8 In a similar study, Finnish researchers found that within one year of an abortion,

“women were three times more likely to commit suicide

than the general population, and nearly six times more

likely to [do so] than women who gave birth,” while most

of these deaths occur in the first two months. 9 It is “selfevident” that women who discover facts relevant to their

abortion decision later will suffer greater regret and psychological harm. Gonzales, 550 U.S. at 159–60.

3. Everyone should agree that if a woman chooses

abortion, her choice should be fully informed with truthful and complete information. Yet evidence shows that

the work of sidewalk counselors is even more critical because women will often not receive this information inside the abortion clinic.

The experience of Amici is that women are often uninformed about what to expect from abortion. Human

Coalition’s clinic staff often serve women who were not

provided accurate information about medication abortion by abortion providers, as one example. Abortion providers are reported to minimize concerns or side effects

and focus on the positive—using phrases like “easy

Id. (emphasis added) (citing Ilaria Lega, et al., Maternal suicide in Italy, Archives of Women’s Mental Health 23, 199–206 (2020)

https://doi.org/10.1007/s00737-019-00977-1).

Id. (emphasis added) (citing M. Gissler, et al., Suicides after

pregnancy in Finland, 1987-94: register linkage study, 313 British

Med. J. 1431–34 (Dec. 1996) https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2352979/pdf/bmj00571-0021.pdf).

process,” “quick recovery,” and “like taking over-thecounter meds.” Some Human Coalition clients who were

prescribed medication abortion pills said they were told

by the abortion provider that “it is as easy as taking Advil.” Many clients also report that they were not warned

about the pain or that they might see fetal remains. Staff

have been told things like, “I had no idea that the pill was

going to be as painful as it was,” “I bled way more than I

was told. The whole procedure was more painful than I

was led to believe,” “I saw the baby come out in the toilet

… It was very traumatic. And no one told me I would see

a baby. I didn’t know what to do.” Women call Human

Coalition nurses panicking in the middle of their abortions because of these unexpected results, and the nurses

support them over the phone. 10

A lack of pertinent information is not only common to

medication abortions. As this Court noted in Gonzales,

women were not being told about the brutality of the partial-birth-abortion procedure, which could have devastating effects:

It is self-evident that a mother who comes to regret her choice to abort must struggle with grief

more anguished and sorrow more profound when

she learns, only after the event, what she once did

not know: that she allowed a doctor to pierce the

skull and vacuum the fast-developing brain of her

unborn child, a child assuming the human form.

These experiences track with trial testimony given by one

woman who underwent a medication abortion in Texas. See Tr.

Transcript, Vol. III of V, at 94:24-95:20, 96:7-8, Whole Woman’s

Health v. Hellerstedt, No. 1:14-cv-00284-LY (W.D. Tex. Aug. 21,

2014), ECF No. 195.

550 U.S. at 159–60 (emphasis added). “It is … precisely

this lack of information concerning the way in which the

fetus will be killed that is of legitimate concern to the

State.” Id. at 159. Similarly, the Fifth Circuit recounted

evidence that abortion clinics do not explain to women

what second-trimester D&E abortion procedures entail:

Women who receive live-dismemberment D&Es

are not being told what is going to happen to the

fetus. In this case, the plaintiffs’ consent forms do

not explain in ‘clear and precise terms’ what a livedismemberment abortion entails. For example,

Plaintiff Southwestern’s form tells the patient

that ‘the pregnancy tissue will be removed during

the procedure’ and does not explain that the fetus’s body parts—arms, legs, ribs, skull, and everything else—will be ripped apart and pulled out

piece by piece. Plaintiff Alamo’s consent form

states that the doctor will ‘empt[y] the uterus either by vacuum aspiration or evacuation (manual

removal of the fetus by forceps).’ Plaintiff Whole

Woman’s Health’s form states: ‘The physician will

use … instruments such as forceps to remove the

pregnancy from the uterus … in multiple fragments.’

Whole Woman’s Health v. Paxton, 10 F.4th 430, 444 (5th

Cir. 2021) (citation omitted). Yet as this Court recognized, “most women considering an abortion would deem

the impact on the fetus relevant, if not dispositive, to the

decision.” Casey, 505 U.S. at 882. This is exactly the type

of information sidewalk counselors often seek to give

women entering clinics. And it is especially critical in

states like New York, which lack abortion-related informed consent laws. In New York, a woman can abort

her baby without ever being shown what he or she looks

like on an ultrasound screen, or without ever being informed that she can seek free services from the state and

how to receive child support from the baby’s father—

facts that many women would deem relevant to their decision.

4. Finally, sidewalk counselors like Petitioner are

another line of defense to prevent coercive abortions and

protect women from abusive partners, perhaps by detecting a situation that seems “off” before the woman enters the clinic, or by offering a place where the woman

can go for help and services. As a recent study found,

over 60% of women report at least one form of coercion

related to her abortion decision. 11 Intimate partner violence is of particular concern in the population of women

seeking abortions, who are at increased risk for reproductive coercion. In 2007, the prevalence of intimate

partner violence was nearly three times greater for

women seeking abortions than for women who continued

their pregnancies. 12

This is particularly true for women who are victims

of sex trafficking. 13 In a study examining reproductive

David C. Reardon & Tessa Longbons, Effects of Pressure to

Abort on Women’s Emotional Responses and Mental Health, 15(1)

Cureus (Jan. 31, 2023), available at https://perma.cc/W6SX-KS78.

ACOG Committee Op. No. 554, Reproductive and Sexual Coercion (February 2013; Reaffirmed 2019), https://www.acog.org/

clinical/clinical-guidance/committee-opinion/articles/2013/02/reproductive-and-sexual-coercion.

Laura J. Lederer & Christopher A. Wetzel, The Health Consequences of Sex Trafficking and Their Implications for Identifying Victims in Healthcare Facilities, 23 Annals Health L. 61 (2014),

https://lawecommons.luc.edu/cgi/viewcontent.cgi?article=1

410&context=annals.

harm in survivors of sex trafficking, 55.2% of the 67 survivors examined for the study reported at least 1 abortion, and almost 30% reported multiple abortions. 14

“More than half (eighteen) of [the responsive] group indicated that one or more of their abortions was at least

partly forced upon them.” 15 One woman reported having

17 total abortions and noted that some were forced upon

her. 16 If a woman is being coerced or trafficked, the short

walk from the parking lot to the door of the clinic may be

the only chance she has to make contact with individuals

who seek to help her. Keeping those individuals at a distance lessens the chance that they will be able to help.

III. Laws sanctioned by Hill are rooted in the sexist

assumption that women are too fragile to hear

alternative viewpoints.

As demonstrated above, the history and tradition of

speech and leafleting on the public sidewalk is firmly

grounded in the Constitution. See Part I supra. The

Court has also recognized for many years that providing

information to women before they undergo abortion is

critical to ensuring their choice is informed and avoiding

negative consequences. See Part II.A supra. And even

abortion-determined women appreciate being given

more information and options for support and benefit

from that information. See Part II.B supra. So why did

Hill sanction laws like the Act here, even though it represented an extreme departure from the Court’s established First Amendment jurisprudence?

Id. at 73.

Id.

Id. at 73–74.

Simple: The Court assumed that women seeking

abortions uniquely need to be protected from speech that

could offend them. See Hill, 530 U.S. at 777 (Kennedy,

J., dissenting). Hill’s conclusion stands out like a sore

thumb from the rest of the Court’s First Amendment

precedent, which acknowledges that there is no right not

to be offended, and that the First Amendment protects

even speech offensive to the listener, especially in a quintessential public forum. See Part I.B supra. Case after

case rejects state regulation of offensive speech, a “bedrock principle underlying the First Amendment.” Texas

v. Johnson, 491 U.S. 397, 414 (1989) (collecting cases).

And case after case acknowledges that, except where an

individual is a captive audience (i.e., in one’s home, see

Frisby v. Schultz, 487 U.S. 474 (1988)), the obligation

falls on a listener to avert their eyes in a public forum,

where we should expect to run into expression that offends, e.g., Erznoznik, 422 U.S. at 210; Cohen v. California, 403 U.S. 15, 21 (1971)).

Following these principles, the Court has held that a

Jewish community including Holocaust survivors must

tolerate Nazis parading down their streets. Nat’l Socialist Party of Am. v. Village of Skokie, 432 U.S. 43 (1977).

The Court determined that people have the right to burn

the American flag that other Americans have sacrificed

their lives to defend. Texas, 491 U.S. 397. Even the grieving family of Lance Corporal Matthew Snyder, a Marine

killed during Operation Iraqi Freedom, was essentially

told by the Court to suck it up in favor of robust protection of free speech, even outrageously offensive speech

directed at their family during one of the hardest days of

their lives—the day they buried their 20-year-old son.

Snyder v. Phelps, 562 U.S. 443 (2011).

Yet in Hill, the Court found it necessary to uniquely

protect women from “potential trauma … associated

with confrontational protests,” 530 U.S. at 715 (emphasis

added), even while admitting that “[t]here was no evidence, however, that the ‘sidewalk counseling’ conducted

by petitioners in th[at] case was ever abusive or confrontational,” id. at 710. Their crime, it would seem, is simply

engaging in “unwanted communication.” Id. at 716. And

the Court assumed on behalf of women that they do not

want sidewalk counselors’ information. Id. at 778 (Kennedy, J., dissenting). In other words, the Court sanctioned the restriction of core protected speech to simply

protect from mere “offense” it believed might occur. The

evidence discussed above shows that women in fact do

appreciate the types of information sidewalk counselors

seek to provide and benefit from it. See Part II.B.1. But

even if some women would rather not hear it, “‘[i]f liberty

means anything at all, it means the right to tell people

what they do not want to hear.’” 303 Creative LLC v.

Elenis, 143 S. Ct. 2298, 2321 (2023) (citation omitted).

Hill, in its paternalistic effort to “save” women from receiving more information, violated its own settled precedent: “[T]he Constitution does not permit government to

decide which types of otherwise protected speech are

sufficiently offensive to require protection for the unwilling listener or viewer.” Erznoznik, 422 U.S. at 210.

While the Hill majority apparently considered it

chivalrous to swoop in to rescue helpless damsels from

the distress of potential offense, the Amici feminist

groups and most women today would object to being patronized in such a fashion. That the Court went to these

lengths only to protect women seeking abortion, while

telling virtually everyone else to grow a thicker skin,

reveals the exceptionally condescending (and content

discriminatory) nature of the ruling. Only women seeking abortion are seen as so fragile that they cannot withstand potential offense. The women of 2023 would disagree that abortion-minded women need special protection from communication designed to give her more information to facilitate her choice. Knowledge is power—

and a woman does not need the State to lay its coat over

the truth so that she need not muddy her feet with it.

To be sure, this is not to say that the State may not

criminalize assault, blocking clinic entrances, or violence.

Both the federal government and New York already do,

which reiterates that the law at issue is aimed purely at

expression. See 18 U.S.C. §248; N.Y. Penal Law

§240.70(1); see also Hill, 530 U.S. at 777–78 (Kennedy, J.,

dissenting). 17 Amici are strongly anti-violence and do not

condone such activities. Nor do Amici condone verbally

attacking or condemning women seeking abortions. All

the Amici seek to educate, care for, and empower

women, and do not engage in such behavior.

Yet this Court has recognized for many years that “in

public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing

space’ to the freedoms protected by the First Amendment.” Boos, 485 U.S. at 322. That some might choose to

This is not to say that these laws are always applied appropriately. See, e.g., U.S. House of Reps. Judiciary Cmte., Jim Jordan

Launches Congressional Inquiry Into FBI Raid on Mark Houck,

DOJ’s Political Enforcement of FACE Act, (Oct. 7, 2022), https://judiciary.house.gov/media/press-releases/jim-jordan-launches-congressional-inquiry-into-fbi-raid-on-mark-houck-dojs. The federal

FACE Act expressly excludes protected expressive conduct from its

scope. 18 U.S.C. §248(d)(1).

use their right to speak in an offensive, unkind, or unwise

way does not justify the restriction of all speech, especially not in a quintessential public forum, and especially

not when the desired speech will largely benefit those the

Act seeks to shield.

CONCLUSION

The Court should grant the petition.

Respectfully submitted.