The Supreme Court turned down an opportunity to overturn its precedent permitting buffer zones around abortion clinics over the objections of two of the court’s leading conservatives.
In two orders issued Monday, the court declined to take up challenges to ordinances in Carbondale, Ill., and Englewood, N.J., that ban anti-abortion activists from approaching someone entering an abortion clinic, sometimes dubbed “sidewalk counseling.”
Justices Clarence Thomas and Samuel Alito both indicated they would’ve taken up the case, but it requires four justices’ votes to do so.
Lower courts upheld both cities’ ordinances under the Supreme Court’s 2000 decision in Hill v. Colorado, which found a similar Colorado law did not violate the First Amendment.
Anti-abortion groups have since looked to eviscerate the precedent. Their hopes have been bolstered by several conservative justices who recently criticized the decision as an aberration of free speech doctrine — including in the Supreme Court’s opinion overturning constitutional abortion protections.
“Hill has been seriously undermined, if not completely eroded, and our refusal to provide clarity is an abdication of our judicial duty,” Thomas wrote.
Alito, meanwhile, did not author a written dissent.
The court has declined to revisit Hill before, including in a similar case in 2023.
“Hill was wrong the day it was decided, and the case for overruling it has only strengthened ever since,” Paul Clement, a veteran conservative Supreme Court attorney who previously served as solicitor general, wrote in the petition challenging Carbondale’s ordinance.
Clement represented Coalition Life, an anti-abortion group that organizes “sidewalk counseling” in places like Carbondale. The group’s request to overturn the 24-year-old precedent was backed by 15 Republican state attorneys general, Alliance Defending Freedom and other anti-abortion groups.
The city noted its ordinance has been repealed as it urged the court to turn down Coalition Life’s appeal.
“Petitioner wants to fast-track a request that this Court overturn Hill just as it overturned Roe v. Wade. This Court should deny that request. This case is a far cry from an ideal—or even passable—vehicle for revisiting Hill,” Neal Katyal, another veteran Supreme Court advocate, who served as acting solicitor general under former President Obama, wrote on behalf of the city.
In Englewood, resident Jeryl Turco challenged a similar ordinance the city enacted in 2014 establishing a buffer zone around a local abortion clinic in response to aggressive protestors from a group called Bread of Life.
Turco is not affiliated with the group and said the ordinance impermissibly violated her First Amendment rights to be a sidewalk counselor.
She was represented by Jay Sekulow, lead counsel at the conservative legal organization American Center for Law and Justice. Sekulow was one of President Trump’s attorneys at his first impeachment trial.
Englewood urged the court to turn away the case, saying it “is extremely fact-sensitive and involves material credibility issues that the District Court has resolved. Also, the facts of this case are unique because of Petitioner’s method of sidewalk counseling.”
