The Supreme Court decided on Feb. 24 not to hear a case challenging a 25-year-old precedent allowing governments to forbid outreach within a so-called bubble zone outside abortion clinics.
Justice Clarence Thomas dissented from the ruling. Justice Samuel Alito indicated that he would have granted the petition but did not explain why. Alito did not join Thomas’s dissenting opinion.
The case arose from a now-rescinded Carbondale, Illinois, law that forbade outreach within a certain distance of abortion clinics.
The local disorderly conduct ordinance being challenged made it illegal—within 100 feet of a hospital, medical clinic, or health care facility—to come within eight feet of another person with the intention of distributing leaflets, displaying signs, or participating in protest, education, or counseling.
The city enacted the ordinance months after the Supreme Court’s June 2022 ruling in Dobbs v. Jackson Women’s Health Organization.
Dobbs overturned Roe v. Wade (1973), holding that there was no right to an abortion under the U.S. Constitution. It returned the regulation of abortion to the states.
The local law came into force in January 2023, but the city repealed it later that year.
In their petition, challengers had also asked the justices to review the Supreme Court’s ruling in Hill v. Colorado (2000) that upheld a Colorado law prohibiting activists opposed to abortion from coming within eight feet of another person inside a 100-foot zone around a health care facility without that person’s consent.
The Supreme Court ruled at that time that activists were still free to express their opinions outside the designated zone.
The group, which is active in sidewalk counseling outside abortion clinics in Kansas, Missouri, and Illinois, sued Carbondale, arguing that the local law was unconstitutional.
Pro-life groups argue that laws restricting free speech outside abortion clinics deserve to be reexamined in light of the Dobbs ruling.
In July 2023, U.S. District Judge Stephen McGlynn of the Southern District of Illinois dismissed the lawsuit against Carbondale’s bubble zone law in a brief two-page ruling.
The judge held that the lawsuit was barred by Hill v. Colorado.
In his dissent, Thomas said the Supreme Court long ago “stopped applying Hill.”
“Hill has been seriously undermined, if not completely eroded, and our refusal to provide clarity is an abdication of our judicial duty,” the justice wrote.
Thomas wrote that several justices have described the Hill precedent as a deviation from the Supreme Court’s First Amendment rulings, calling it “absurd,” “defunct,” “erroneous,” and “long-discredited.”
“I would have taken this opportunity to explicitly overrule Hill,” Thomas wrote.
“For now, we leave lower courts to sort out what, if anything, is left of Hill’s reasoning, all while constitutional rights hang in the balance.”
Peter Breen, executive vice president and head of litigation at the Thomas More Society, a public interest law firm on Coalition Life’s legal team, expressed disappointment.
“On the eve of our petition deadline, Carbondale quietly repealed its bubble zone ordinance ... knowing full well their bubble zone would fail constitutional scrutiny if it came before the Supreme Court,” he told The Epoch Times.
The city “flagrantly violated ... free speech rights for 18 months without penalty,” he said.
“This game of legal Whac-A-Mole is an unsustainable dynamic, and the only solution is for the court to overrule Hill once and for all.”
Brian Westbrook, founder and executive director of Coalition Life, told The Epoch Times that even though the appeal was declined, across the country the right of sidewalk counselors “to inform women about their options” continues to be denied.
Jamie Snyder, city attorney for Carbondale, did not respond to a request for comment.
