Anti-abortion groups want Supreme Court to get rid of protest-free zones at clinics
Abortion opponents note that when the Supreme Court overturned Roe. v. Wade, justices also criticized a previous ruling on protest-free zones at clinics.
WASHINGTON − Days after the Supreme Court in 2022 overturned the constitutional right to an abortion, a New York county passed a law barring anti-abortion activists from approaching women outside abortion clinics.
When a religious group asked the Supreme Court to intervene, Westchester County officials got rid of the restrictions – and last year the justices declined to get involved.
Now anti-abortion groups are urging the justices not to fall for another “bait and switch.”
They’ve asked the Supreme Court to hear a challenge to a similar law in Carbondale, Illinois, that was repealed as the case was heading to the high court.
Anti-abortion groups, as well as a number of Republican attorneys general, want the justices to use it to overturn a 2000 decision − Hill v. Colorado − that upheld protest restrictions around abortion clinics.
“The time has come for the Court to restore the constitutional rights that Hill eviscerated, and this case provides a perfect opportunity to do so,” Paul Clement, a former U.S. solicitor general who has argued more than 100 Supreme Court cases and is representing the anti-abortion group Coalition Life, wrote in a filing.
Close enough for eye contact versus 8-foot buffer
Coalition Life, a Missouri group, says its members need to get close enough to women to make eye contact as they advocate against abortion.
In Hill v. Colorado, the court ruled 6-3 that Colorado could prevent activists from coming within 8 feet of another person within a 100-foot zone surrounding a health care facility.
The justices kept that decision intact in 2014 when it struck down a 35-foot protest-free zone outside abortion clinics in Massachusetts.
Alito criticized 2000 decision when overturning Roe
But the court slammed the 2000 ruling when overturning Roe v. Wade in 2022. Criticizing the effect of abortion cases on other areas of the law, Justice Samuel Alito wrote that Hill “distorted First Amendment doctrines.”
Rather than take that as the warning it was intended to be, anti-abortion groups say, some municipalities flouted it.
Officials in New York’s Westchester County enacted restrictions similar to those that had been upheld in Hill.
A Catholic “sidewalk counselor” challenged the rules, saying they violated her First Amendment right to engage in face-to-face conversation with women entering a Planned Parenthood clinic.
The restrictions were upheld by an appeals court relying on the Supreme Court’s 2000 decision. But when the Becket Fund for Religious Liberty then asked the Supreme Court to revisit that 2000 decision, county officials repealed the restrictions. Their reversal was supported by Planned Parenthood, which agreed with the county that the restrictions were unnecessary and difficult to enforce.
The Becket Fund, however, drew the Supreme Court’s attention to the fact that the county’s attorney had hoped that the law would not be reviewed by the high court, because “I think we know what the Supreme Court would rule if this ever got there.”
Still, the justices declined last year to take the case.
Now they’re being given another chance to overturn their 2000 decision.
Illinois city responds to increase in abortion protests
The Southern Illinois city of Carbondale saw an increase in anti-abortion protests after two reproductive health facilities opened to accommodate women from nearby states that restricted abortion after Dobbs v. Jackson Women’s Health Organization.
City officials responded by passing restrictions modeled after Colorado’s. But the city council repealed the ordinance in July, before anyone had been charged with violating it.
The city’s lawyers told the Supreme Court they had determined existing laws provided sufficient protection from any “disorderly conduct.”
Ant-abortion groups’ assertion that the ordinance was repealed to avoid the Supreme Court getting involved is just speculation, Carbondale’s lawyers said. In any case, they added, the city is entitled to reconsider its position for any reason.
The attorneys general of Kentucky and 14 other states are among those calling foul.
“If the Court countenances the repeal-the-law strategy again, then every government has a blueprint to follow if it wants,” they told the court in a filing. “It can enact a law modeled on Hill, ensure a year, two, or more of effectiveness while a legal challenge works through the lower courts, and then repeal it when the case gets to this Court. And all the while Hill remains on the books.”
Buffer zone in New Jersey city also before Supreme Court
The Supreme Court could decide soon whether to take the case, as well as a different challenge from New Jersey.
An anti-abortion activist, represented by the American Center for Law and Justice, is contesting a 2014 ordinance in Englewood, New Jersey, that created a protest-free buffer zone around certain health care facilities. The buffer bars the public from coming within 8 feet of clinic entrances.
The Philadelphia-based 3rd U.S. Circuit Court of Appeals ruled in January that the restrictions were narrowly tailored, do not violate protesters’ First Amendment rights, and are less restrictive than what the Supreme Court sanctioned in 2000.
But challengers will keep asking the Supreme Court to intervene, Jay Sekulow of the American Center for Law and Justice told the court, until that 2000 decision has been overturned.