Wendy Faustin says she wants to do something simple outside Colorado abortion clinics: walk up to a woman and tell her about other options. State law and a Denver ordinance say she generally cannot get within eight feet of that woman without her consent if they are standing within 100 feet of a health-care facility entrance. Now Faustin's challenge to that restriction is sitting before a federal appeals court, with her attorneys warning the fight could eventually land at the U.S. Supreme Court.
A Bubble Law Born in 1993
Colorado's so-called bubble law has been on the books since 1993, when state legislators passed a measure generally prohibiting people from approaching others within eight feet near health-care facility entrances, according to The Gazette. Denver has its own ordinance that is substantially identical to the state statute, per a federal complaint reviewed by Courthouse News. Both restrictions bar knowingly approaching within eight feet of another person without that person's consent, within 100 feet of a clinic entrance, to distribute literature or engage in oral protest, education, or counseling, according to the U.S. Supreme Court's own description of the law in its opinion published by Cornell's Legal Information Institute.
Faustin describes herself as a pro-life advocate and sidewalk counselor, a characterization that matches how First Liberty Institute identifies her in case materials tied to her lawsuit. She told Fox News she cannot approach someone within eight feet to give them alternative information when she's within 100 feet of an abortion clinic entrance. Faustin said she wants to approach people directly and tell them about places they can get help, and she believes women facing the decision deserve all the information available to them, including help from crisis pregnancy centers and adoption agencies.
Forced to Shout From a Distance
Faustin also said the eight-foot buffer forces her to speak from farther away than she would like, which she says can let others overhear conversations she would otherwise prefer to keep private, according to the same Fox News account. First Liberty Institute and the law firm Cooper and Kirk filed Faustin's federal lawsuit in June 2023, challenging both Colorado's law and Denver's ordinance under the First and Fourteenth Amendments. The complaint, filed in the U.S. District Court for the District of Colorado and reviewed by Courthouse News, asked the court to declare the restrictions unconstitutional and block their enforcement.
A federal judge rejected Faustin's challenge, ruling that the Supreme Court's decades-old precedent in Hill v. Colorado controlled the outcome, writing that the court was required to follow the case that directly controls, per The Gazette's account of the ruling. First Liberty says that court granted summary judgment against Faustin's clients, and her attorneys have since appealed that decision to the U.S. Court of Appeals for the Tenth Circuit, where the case now sits, as confirmed by Fox News.
The Hill v. Colorado Precedent
The Supreme Court upheld Colorado's restrictions in Hill v. Colorado in a 6-3 ruling on June 28, 2000, finding that Colorado Revised Statute Section 18-9-122(3) amounted to a valid time, place, and manner regulation and did not violate the First Amendment, according to the opinion hosted by Cornell's Legal Information Institute. The decision's 6-to-3 margin was also noted by Colorado Politics. That ruling has stood for more than 26 years as the controlling precedent for buffer-zone laws like Colorado's, which is why the district court felt bound to reject Faustin's challenge despite her attorneys' broader constitutional arguments.
Roger Byron, senior counsel for First Liberty Institute, argues the dispute extends far beyond abortion and raises fundamental First Amendment questions, he told Fox News. Byron said the law makes it a crime for Faustin to approach within eight feet of a woman near a clinic, and he argued the restrictions would not survive constitutional scrutiny if applied to other forms of protest. He said restrictions like these would be struck down if they applied to anti-war protesters or striking union workers.
What's Next for the Case
Byron said the Tenth Circuit's ruling will determine what happens next, and he expects the case to end up before the U.S. Supreme Court regardless of which side wins at the appellate level. Courthouse News' review of the complaint found that a violation of Colorado's restriction is described as a petty offense punishable by a fine of up to $300, up to 10 days in jail, or both, while a separate account from Just the News describes violations of the state law and Denver ordinance as misdemeanors. The complaint reviewed by Courthouse News separately states that a violation of Denver's ordinance is punishable by a fine of up to $999, up to 300 days in jail, or both.
Faustin's fight echoes a similar battle over a Massachusetts abortion-clinic buffer-zone law in McCullen v. Coakley, in which petitioners sued the state's attorney general and other officials seeking to block enforcement of that state's buffer law on First and Fourteenth Amendment grounds, according to the opinion published by Cornell's Legal Information Institute. For now, Faustin's case remains before the Tenth Circuit, where judges will weigh whether a Supreme Court precedent more than 26 years old still holds against her renewed constitutional challenge.
