CHICAGO (CN) – A staunchly conservative Seventh Circuit panel upheld Chicago’s “bubble zone” ordinance creating a buffer area around medical facilities – including abortion clinics – but the ruling almost begs the pro-life plaintiffs to appeal to the Supreme Court.
Abortion opponents brought a federal complaint against Chicago’s 2009 “bubble zone ordinance,” which creates large buffer zones outside the entrances of medical clinics and health care facilities.
In these zones, no one can come within eight feet of other individuals, without their consent, to hand them leaflets or engage in oral protest.
The plaintiffs are pro-life “sidewalk counselors” who seek to speak with women seeking an abortion and given them pro-life literature about options for carrying their pregnancy to term. They claim the bubble zone is an unconstitutional content-based restriction on their freedom of speech.
A federal judge dismissed their suit however, relying on the Supreme Court’s 2000 decision in Hill v. Colorado, which upheld a very similar Colorado law.
In Wednesday’s opinion, U.S. Circuit Judge Diane Sykes said that Supreme Court precedent in Hill requires dismissing this case.
However, the ruling almost urges the plaintiffs to appeal, stating that binding precedent in Hill is “incompatible” with the high court’s more recent First Amendment decisions.
“Hill’s content-neutrality holding is hard to reconcile with both McCullen [v. Coakley] and Reed v. Town of Gilbert, and its narrow-tailoring holding is in tension with McCullen. Still, neither McCullen nor Reed overruled Hill, so it remains binding on us,” Judge Sykes said.
In McCullen, the Supreme Court unanimously held that Massachusetts’ 35-foot fixed abortion buffer zone was unconstitutional. Abortion clinic buffer-zone laws “impose serious burdens” on core speech rights, Chief Justice John Roberts wrote.
And in Reed, the high court unanimously held that a town’s sign ordinance was unconstitutional because it imposed stricter limitations on signs for religious services than signs with political or ideological messages.
“McCullen and Reed have deeply shaken Hill’s foundation. Yet the case remains on the books and directly controls here,” Judge Sykes said.
“Only the Supreme Court can bring harmony to these precedents,” the judge continued.
With the recent appointment of Brett Kavanaugh, the Supreme Court is more conservative than it has been in decades. Judge Sykes, a very conservative jurist who was considered by both President George W. Bush and Donald Trump as a potential Supreme Court nominee, is likely to support a Supreme Court decision to limit abortion rights.
In addition, “We would open a circuit split if we allowed this facial challenge to move forward. The Third Circuit, applying Hill, upheld Pittsburgh’s 8-foot bubble zone against a facial challenge without requiring an evidentiary showing from the City,” Judge Sykes added.
Judge Sykes’ opinion was joined by U.S. Circuit Judge Amy Coney Barrett, a Trump-appointee and practicing Catholic, and U.S. District Judge William Griesbach, a George W. Bush-appointee sitting by designation.
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