For more than three decades, activists and other individuals in the state of Colorado have been prohibited from getting within eight feet of a person, without their consent, to give them a leaflet or handbill, display a sign or engage in oral protest, education or counseling when they’re within 100-feet of a health care clinic.
Colorado’s “bubble bill,” as Congresswoman Diana Degette referred to it in a press release, was passed in 1993 and was the first in the country.
“Back when I was in the Colorado State Legislature, I fought to pass the nation’s first ‘bubble bill’ to protect Coloradoans from harassment when trying to enter health care clinics,” Degette said in a press release.
Former Colorado state Sen. Mike Feeley, a Democrat who was representing Lakewood, was a sponsor of the bill. According to an Associated Press article published that year, he said that the bill didn’t take sides in the abortion debate. “It’s simply about walking up a sidewalk,” Feeley said.
16 other states and Washington, D.C. have also passed laws that shield individuals from harassment and physical harm when entering health care or abortion clinics, according to the Guttmacher Institute.
Despite the neutral intent of Feeley, it didn’t take long for suits to be brought against it. By October 1993, local and national anti-abortion groups had filed a lawsuit against the bill in Jefferson County District Court, according to an article from the Golden Transcript.
The suit argued that the “Challenged statute violates well-recognized rights, including the rights to freedom of speech, press and assembly, the right to due process and the right to equal protection under the law,” according to the Transcript.
The litigation did not stay in the Colorado court system. The U.S. Supreme Court heard arguments on the case in January 2000, and, in a 6-3 decision, upheld the law. Justice John Paul Stevens wrote in the majority opinion that the law was constitutional.
Stevens noted that while the petitioner’s First Amendment interests were clear and undisputed, the state’s police powers allowed it to protect the health and safety of its citizens and that it could justify a special focus on access to health care facilities.
Since that decision, other municipalities have also passed similar “bubble zone” laws, including the city of Carbondale, Illinois, which passed its own law in January 2023. Like Colorado, the city was also subject to litigation related to the measure. But this time the nation’s high court denied a writ for certiorari.
Justice Clarence Thomas, the only active member of the Supreme Court who was part of the Hill decision, cited the case in his recent dissent of the writ denial. He disagreed with the court’s original decision in Hill, joining the dissent of former Supreme Court Justice Antonin Scalia.
In his dissent from Feb. 24 for writ denial in the new Illinois case, Thomas wrote that he doesn’t see what is left of the Hill decision following the Dobbs v. Jackson Women’s Health Organization decision.
“Yet, lower courts continue to feel bound by it,” Thomas wrote. “The Court today declines an invitation to set the record straight on Hill’s defunct status.”
Justice Samuel Alito would have also granted the writ. But the denial means that the Colorado and Carbondale laws, signed into effect three decades apart, still stand.