Major Post-Dobbs Abortion Case: ACLJ Appeals Abortion Distortion Decision in Pro-life Free Speech Case

We recently filed our Notice of Appeal in the ongoing pro-life free speech case of Jeryl Turco v. City of Englewood, New Jersey. This is a case that we filed in 2015, won on summary judgment in 2017, lost at the Third Circuit Court of Appeals in 2019 (which sent the case back to the district court for trial), and tried before a federal court in February of this year.

Our client, Jeryl Turco, has been sidewalk counseling outside an abortion business in Englewood for over 15 years. On her behalf, we’re challenging the city’s buffer-zone ordinance that creates an obstacle course for sidewalk counselors like Turco and interferes substantially with her ability to share her message. We contend that, under the unanimous Supreme Court decision in McCullen v. Coakley (2014), the ordinance imposes an unconstitutional burden on free speech, a burden the city cannot possibly justify.

Following the February trial, the district court – the same court that had ruled in Turco’s favor back in 2017 – has now ruled that, based on the Third Circuit’s interpretation of the applicable law, Turco didn’t show enough of a burden on her free speech rights to prevail. The Third Circuit had based its decision largely on the Supreme Court case of Hill v. Colorado (2000), a case argued by ACLJ’s Chief Counsel, Jay Sekulow. So now we are heading back to the court of appeals, and for reasons explained below, quite possibly to the United States Supreme Court.

In the aftermath of the Supreme Court’s decision in the Dobbs case overturning Roe v. Wade, we noted with gratitude how the Court had relied on two precedents set in cases argued by ACLJ’s Chief Counsel. First, our win in the 1993 case of Bray v. Alexandria Women’s Health Clinic, where we successfully argued that opposition to abortion doesn’t constitute unlawful hostility to women, played a crucial role in the Dobbs majority’s reasoning. But also, as we explained:

Second, and ironically, our loss in  Hill v. Colorado – helped as well. In Hill, we challenged an anti-speech “bubble zone” ordinance outside abortion businesses. The Supreme Court rejected our challenge in 2000. But in Dobbs, the majority used that terrible ruling as an illustration of how the Court’s abortion cases after Roe “have distorted First Amendment doctrines.” That means the Dobbs Court drew good out of a bad decision – using Hill against Roe – and in the process, plainly indicated that Hill is no longer valid as a First Amendment precedent.

In other words, Hill v. Colorado, the principal basis upon which the Third Circuit and now the district court have ruled against Jeryl Turco, could well be the next “abortion distortion” shoe to drop in the wake of Dobbs.

But first things first. For now, we’re heading back to the Third Circuit where we’ll make the argument (among others) that Hill doesn’t even apply to the facts of Turco’s case for many reasons. But we’ll also hit hard on the fact that Hill itself is basically a dead letter for the majority of the Supreme Court. And we’ll emphasize that the court of appeals, while recognizing its inability to overrule even a barely breathing Supreme Court precedent, would do well to give Hill as much importance as the Supreme Court did in McCullen:  none.

If the Third Circuit persists in wrongly applying Hill to the facts in Englewood, more than one possible path to the Supreme Court opens up. The Court could grant review based on the circuit court’s deciding an important federal question in a way that conflicts with relevant decisions of the Supreme Court. (The circuit’s prior reliance on Hill instead of McCullen in this case clearly does so conflict.) Another possibility is a potential conflict or split between circuit courts of appeals. We have a second buffer-zone case, Harpring v. Louisville Metro, which is currently at the Sixth Circuit Court of Appeals, and likely to be argued as early as next month. If the Sixth Circuit takes a different view of Hill’s applicability to post-McCullen buffer-zone cases (let alone Hill’s viability as a precedent) than that taken by the Third Circuit in several cases (in addition to Turco) up to now, we would have a classic circuit-split, the kind the Supreme Court frequently steps in to resolve.

Either way, it appears that we at the ACLJ could very well be back at the Supreme Court – perhaps as early as next year – once again defending the right of pro-life speakers to be able to share their life-saving message in public spaces under the protection of the First Amendment. As the Dobbs opinion itself illustrates, this has been an essential part of the ACLJ’s mission since the beginning. And our mission continues . . .