Pro-lifer challenges “zombie” precedent

A San Diego retiree could face criminal charges for talking with parents of unborn children outside of abortion facilities due to a “no-speech zone” law. Roger Lopez recently asked the 9th U.S. Circuit Court of Appeals to repeal what he alleges is a discriminatory and unconstitutional law, the Chicago-based Thomas More Society announced last week. He argues that the lower court threw out his case based on a decades-old Supreme Court ruling that Lopez contends is a dead, “zombie” precedent.

About 25 years ago, Lopez and his wife began talking with women visiting a downtown Planned Parenthood, giving them the chance to hear about options other than abortion. If a woman didn’t want to talk with them, the couple prayed instead.

When his wife died in 2008, Lopez was hesitant to continue. But a year later, when no counselors showed up to stand outside the facility, he decided to go alone. He said he helped save three babies that day. “God just had his hand on my shoulder,” he said.

In June 2024, San Diego officials passed an ordinance establishing a no-speech zone. The law restricts sidewalk counselors from entering a 100-foot buffer zone in front of an abortion facility’s main entrance. The zone also applies within 8 feet of any individuals or vehicles entering or exiting the building. Pro-lifers who want to talk with people seeking abortions have to receive permission to enter the 8-foot bubble.

The ordinance severely restricts what counselors can do to get people’s attention. The street in front of San Diego’s facility is busy and loud, with jets often flying overhead, Lopez said. He estimates that, since the city instituted the ordinance, 25% of the women visiting the center or fewer have come up to him for a conversation.

Lopez noted that the law’s restrictions are also vague. A guard once called him out for just holding up a pamphlet, he said.

“I feel like I have my hands tied behind my back,” he said. “Trying to follow the letter of the law, which is very vague, is a real burden on someone who is trying to reach out and help somebody else.”

If sidewalk counselors violate the no-speech zone, they face heavy fines or even imprisonment.

In September, Lopez sued the city, contending that the law targets and discriminates against pro-life speech.

A federal court tossed out Lopez’s case in March. The court ruled that San Diego’s law is content-neutral and constitutional under a 2000 Supreme Court case, Hill v. Colorado.

In Hill, the high court upheld a similar “bubble zone” law in Colorado. The justices found that Colorado’s law was neutral and constitutional because it restricted all speech outside of medical facilities.

But Lopez contends that his case differs significantly from Hill. San Diego’s law is overly broad compared to Colorado’s, and it unfairly targets pro-life speech by exempting abortion facility employees, agents, and volunteers from the ordinance, said Chris Galiardo, an attorney for Thomas More Society.

Additionally, the 25-year-old Hill ruling is a “zombie” precedent that needs to be abandoned, Galiardo said. Zombie precedents occur when justices view a former Supreme Court ruling as dead, even if the high court hasn’t officially thrown out the case, he explained.

In 2018, the high court overturned its decision that upheld Japanese-American internment camps in 1944, even though courts had stopped considering it a binding precedent long ago, Galiardo said.

“The same thing happened with Hill,” Galiardo said. “It hasn’t technically been killed yet, but it is no longer alive.”

Brad Jacob, a constitutional law expert at Regent University School of Law, echoed this, adding that Hill is a “terrible” decision that clearly discriminates against one viewpoint. While bubble zone laws like the one in San Diego claim to restrict speech neutrally, they end up restricting only pro-life speech.

“It’s such an obviously wrong First Amendment decision,” Jacob said. “It’s hard to avoid the sense that the court has just moved on from Hill v. Colorado, and it’s not really good law anymore.”

In February, Justice Clarence Thomas wrote in a dissent for a case on a similar law in Carbondale, Ill., that lower courts should no longer feel “compelled to uphold Hill-like buffer zones around abortion clinics.”

Also, in its 2022 decision in Dobbs v. Jackson Women’s Health Organization, which overturned the Roe v. Wade abortion ruling, the high court stated that Hill has “distorted First Amendment doctrines.”

Lopez said he hopes the court overturns San Diego’s ordinance so he can return to “peacefully and lovingly” reaching out to women in San Diego.

“I am hanging in there because I believe Jesus is calling me there to stand there in his place and to reach out to those who need help,” Lopez said. “You can’t give up on them.”