A Denver woman filed a federal lawsuit challenging a 1993 Colorado law that bars anti-abortion activists from approaching people within eight feet outside abortion clinics, which takes effect within 100 feet of the facilities.

The woman, Wendy Faustin, argues both the state law and a Denver ordinance against “harassment near health care facilit(ies)” only seek to restrict anti-abortion speech. 

The lawsuit says she has demonstrated outside abortion clinics in Englewood and Denver since the early 1990s, and engaged in “sidewalk counseling” – approaching people outside abortion clinics to try to dissuade them from having the procedure – before the Colorado and Denver laws went into effect.

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The U.S. Supreme Court upheld Colorado’s law in a 6-to-3 ruling in 2000, finding the law passed constitutional muster because it regulated the location of speech rather than the content. But Faustin cites a line in Dobbs v. Jackson Women’s Health Organization that overturned the constitutional right to abortion last year, which said the Colorado case “distorted First Amendment doctrines.”

If a law is determined to infringe on a fundamental constitutional right, courts apply a standard called “strict scrutiny.” The government that passed the law has to show it is narrowly tailored to achieve a compelling state interest, and it is the least restrictive means to meet that interest.

Violations of the state law, known as the “bubble law,” can carry a penalty of up to $300, a jail sentence of up to 10 days or both.

The lawsuit names as defendants Gov. Jared Polis, Attorney General Phil Weiser, 18th Judicial District Attorney John Kellner, Englewood Police Chief Sam Watson, the City and County of Denver, Denver District Attorney Beth McCann, Denver City Attorney Kerry Tipper and Denver Police Chief Ron Thomas.

Spokespeople for Polis and Weiser declined to comment.

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Faustin previously filed a lawsuit in 1998 against the City and County of Denver and police officials challenging a city policy against signs and banners on highway overpasses, based on several encounters she had with police in which they told her not to display a sign reading “Abortion kills children.” The federal 10th Circuit Court of Appeals upheld that policy in 2005, which the city characterized as “unwritten but constitutional.” 

The city had at times during the case described the policy as prohibiting any kind of expression on overpasses, and Faustin challenged it as overly broad and vague. 

However, the appeals court found no evidence the policy had ever been applied to anything except signs and banners, and found it was a reasonable restriction on the time, place or manner of speech because the city had legitimate interests in traffic safety and prohibiting interference with traffic control devices. 

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