US Supreme Court rebuffs free speech challenge to abortion clinic buffer zone

Washington: The US Supreme Court declined on Monday to hear a challenge to the legality of buffer zones used to protect access to abortion clinics and limit harassment of patients in a challenge brought by anti-abortion activists who have argued that their free speech rights were being violated.

The justices turned away appeals by self-described "sidewalk counselors" in New Jersey and Illinois of lower court decisions to throw out their lawsuits that had claimed the buffer zones violate free speech protections under the U.S. Constitution's First Amendment. The activists were asking the Supreme Court to overturn its 2000 ruling allowing a Colorado buffer zone law.

Conservative Justices Clarence Thomas and Samuel Alito said they would have taken up the appeals.

The legality of so-called buffer zones that create a perimeter around abortion facilities, or "floating" zones that put distance between demonstrators and a clinic's patients or staff, has been legally contested for decades. The issue pits free speech rights against concerns over harassment and violence by anti-abortion protesters.

The Supreme Court has a 6-3 conservative majority. In 2022, the court overturned the 1973 Roe v. Wade ruling that had legalized abortion nationwide, ending its recognition of a woman's constitutional right to terminate her pregnancy. Since that ruling, the issue of buffer zones has regained prominence.

While numerous Republican-led states have banned or severely restricted abortion, some municipalities in states where it remains legal have adopted buffer zone ordinances to limit intimidation and harassment, drawing legal challenges.

In Carbondale, Illinois, a group called Coalition Life that organizes sidewalk counselors sued after the local city council passed a such an ordinance in 2023. The measure established a floating 8-foot (2.4 meters) buffer that prevents people from approaching individuals without their permission in the vicinity of healthcare facilities, in response to increased threats and disorderly acts at abortion clinics. It has since been repealed.

It had been modeled after a nearly identical law from Colorado that the Supreme Court upheld in 2000 in a case called Hill v. Colorado.

The Chicago-based 7th U.S. Circuit Court of Appeals dismissed the coalition's case in March 2024, noting that the challengers cannot prevail so long as the Hill v. Colorado ruling remains in place.

Thomas, in his dissent on Monday, criticized the court's decision in the Hill case and expressed regret that the justices had declined "an invitation to set the record straight on Hill's defunct status."

"I would have taken this opportunity to explicitly overrule Hill," Thomas added.

The coalition's lawyers told the justices that even though the ordinance has been repealed, the case is not moot. These lawyers asked the Supreme Court to overrule Hill v. Colorado because in places where "anti-abortion views are disfavored," buffer zones are a "ready tool to try to silence those who advance them - and to do so precisely when and where their speech may matter most."

In New Jersey, a sidewalk counselor named Jeryl Turco sued the city of Englewood for adopting a 2014 ordinance that created an 8-foot buffer zone protecting the entrances and driveways of healthcare facilities.

The buffer was set after reports of people associated with an evangelical Christian ministry engaging in aggressive and hostile protests outside Metropolitan Medical Associates, a local abortion clinic. Turco was not associated with the ministry, and claimed she delivered only peaceful counseling.

The Philadelphia-based 3rd U.S. Circuit Court of Appeals threw out Turco's complaint in January 2024, saying a buffer zone can help protect an individual's health, safety and access to pregnancy-related services, and "does not place a substantial burden on Turco's speech." The 3rd Circuit said its ruling is in line with the Supreme Court's precedent Hill v. Colorado.

"Until this court formally overturns Hill," Turco's lawyers told the justices in a filing, it "will continue to stand in the way of core protected speech."

In 2023, the Supreme Court turned away a Catholic woman's challenge to a now-repealed law in a county north of New York City that had limited protests or "sidewalk counseling" near abortion clinics.