Colorado is becoming a legal battleground over abortion access with new challenge to 30-year-old “bubble” law

by Jesse Paul, The Colorado Sun (AP Storyshare)

An anti-abortion activist is challenging Colorado’s 30-year-old prohibition on approaching people within 100 feet of the entrance of a health care facility to pass them a leaflet, display a sign or engage in “oral protest, education or counseling.”

The 1993 ban, sometimes called the “bubble law,” was enacted by the legislature as a way to shield women getting an abortion from harassment, though it doesn’t apply just to abortion clinics.

The law has faced legal challenges before, including one that went all the way to the U.S. Supreme Court in 2000 and was rejected by a 6-3 vote.

The new lawsuit was filed June 1 in federal court by Wendy Faustin, who “believes that abortion is a horrific moral wrong” and “wishes to personally and compassionately talk to women seeking abortions and give them further information related to the procedure and other available options.”

The defendants include Gov. Jared Polis, Colorado Attorney General Phil Weiser, Denver District Attorney Beth McCann and Denver police Chief Ron Thomas. The attorney general’s office doesn’t comment on active litigation.

Faustin is also challenging a similar, municipal-level bubble law enacted by Denver’s City Council. She argues the laws violate her First Amendment free speech rights, as well as her 14th Amendment rights to equal protection under the nation’s laws.

Faustin appears to be hoping to overturn the U.S. Supreme Court’s 2000 ruling on Colorado’s bubble law now that there’s a conservative majority on the court.

Last year, the court overturned Roe v. Wade, the 1973 precedent guaranteeing a minimum level of abortion access across the country. That decision called the court’s 2000 ruling on Colorado’s bubble law a distortion of First Amendment doctrines.

“Plaintiff acknowledges that the result she seeks is contrary to currently governing precedent as set forth by the majority opinion in Hill,” the lawsuit says. “But for the reasons explained by the dissents in that case and in later Supreme Court precedent, that case was wrongly decided, is irreconcilable.”

Faustin is represented by lawyers for the First Liberty Institute, a Christian nonprofit based in Texas.

More broadly, Colorado is becoming a legal battleground when it comes to abortion. There’s already a pending federal lawsuit challenging the state’s new, first-in-the-nation ban on the so-called abortion pill reversal treatment. A failed effort to block an abortion clinic from opening up in Pueblo was set to test Colorado’s 2022 law enshrining abortion access in statute.

Colorado’s bubble law specifically creates an 8-foot buffer zone for people within 100 feet of a health care facility’s entrance. The state law carries a penalty of jail time and/or a fine for violators.

Other states and cities have bubble laws, too. The outcome of the case in Colorado could affect policies in those places.

“Colorado’s ‘bubble law’ has survived not one but two Supreme Court challenges,” Dani Newsum, director of strategic partnerships at Cobalt, a Colorado abortion rights nonprofit, said in a written statement. “Patients should have a right to access health care, including abortion care, without being harassed. At a time when violence, threats and harassment against abortion clinics, patients and providers is escalating, patients should be left alone to get the health care they need and deserve in peace.”

The case is in its early stages in U.S. District Court. There’s no timeline for when it will be resolved.