Supreme Court won't hear challenge to abortion clinic buffer zones
A divided Supreme Court on Monday turned away a pair of free speech challenges by abortion opponents to city laws in New Jersey and Illinois that restrict protests directly outside clinics and hospitals where abortions are performed. (Photo by Allison Robbert/The Washington Post)
A divided Supreme Court on Monday turned away a pair of free speech challenges by abortion opponents to city laws in New Jersey and Illinois that restrict protests directly outside clinics and hospitals where abortions are performed.
The court declined to reconsider a 25-year-old precedent that has allowed local governments to create protest-free buffer zones around health-care facilities—a ruling that has long been criticized by some conservative justices.
Justices Clarence Thomas and Samuel A. Alito Jr. dissented, with Thomas writing that the court’s decision not to review the case from Illinois was “an abdication of our judicial duty” that allows constitutional rights to “hang in the balance.”
The majority’s decision not to wade into the abortion-related matter is a setback for abortion opponents. But it follows the Trump administration’s announcement that it will scale back Biden-era efforts to prosecute demonstrators who interfere with patient access to reproductive health clinics. The Justice Department last month instructed its civil rights division to drop three pending actions brought under the Freedom of Access to Clinic Entrances Act, involving clinic blockades in Ohio, Tennessee and Pennsylvania.
In contrast, the Biden administration had promoted the Face Act as a critical tool for the Justice Department to protect reproductive rights after the Supreme Court’s decision in 2022 to eliminate the nationwide right to abortion after nearly 50 years.
At issue before the Supreme Court were local regulations passed in Englewood, New Jersey, and Carbondale, Illinois, to prevent demonstrations outside the entrances and in the driveways of health-care facilities. Lower courts rejected challenges to both laws, and those decisions were affirmed on appeal.
The challengers, including the Coalition for Life, told the court that its sidewalk counselors, who educate, pray and distribute literature outside abortion clinics, had nowhere to stand because of the ordinance, making their counseling activities effectively impossible.
They asked the justices to overturn a 2000 Supreme Court decision, which said governments could enact some restrictions in part because the court said the law did not prohibit a particular point of view or subject matter. That decision in Hill v. Colorado upheld a state law that established 100-foot buffer zones outside all health-care facilities—not just abortion clinics—and prohibited approaching a person within an eight-foot bubble to protest, counsel or hand out materials.
More recently, in 2014, the court unanimously struck down protest-free buffer zones around abortion clinics in Massachusetts as an unconstitutional infringement on free speech. But that decision, written by Chief Justice John G. Roberts Jr., was a narrow one, noting that other state and local governments had found ways to accommodate the rights of those opposed to abortion and the women entering clinics.
Mary Ziegler, an abortion law expert and professor at the University of California at Davis School of Law, cautioned against reading too much into the majority’s decision not to review the New Jersey and Illinois cases. Demonstrations and blockades at clinics have historically peaked, she said, when abortion opponents do not have other paths to exercise power. That’s not the case now, she added, with Republicans controlling all three branches of government and in general embracing an antiabortion platform.
“It’s interesting and important that the court isn’t just going to take a wrecking ball to every abortion-related precedent from earlier eras,” said Ziegler, author of Roe: The History of a National Obsession. “But there’s plenty of reason to think the court could still find bubble or buffer laws it doesn’t like.”
In asking the Supreme Court to take the case from Illinois, the coalition’s lawyer, Paul Clement, invoked the Supreme Court’s 2022 decision to overturn Roe v. Wade. In that ruling, known as Dobbs v. Jackson Women’s Health Organization, Alito cited the court’s 2000 decision on buffer zones as an example of an abortion-related case that had “distorted First Amendment doctrines.”
“Dobbs should have made clear beyond cavil that Hill could no longer skew public debate on a divisive issue being returned to the people,” Clement wrote in the Illinois case.
In his dissent Monday, Thomas said lower courts continue to follow Hill despite the court’s repudiation of that ruling in Dobbs.
“I don’t see what is left” of the 2000 decision, he wrote, adding that the court “declines an invitation to set the record straight on Hill’s defunct status.”
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