Things are grim right now, so it’s more important than ever to celebrate the small wins, like the United States Supreme Court unexpectedly declining to hear a case that would have allowed them to declare buffer zones around abortion clinics unconstitutional. It was a surprising move from a court packed with conservatives dedicated to banning abortion.
Now, this shouldn’t be a surprising thing because buffer zones, which protect abortion clinic patients by limiting how close anti-choice protesters can get, have been declared constitutional by this very Supreme Court.
Well, not exactly this very court, and therein lies the problem. It’s not a stretch to say the current conservative supermajority owes their seats on the nation’s highest court to their demonstrated willingness to overturn Roe v. Wade. They’ve also gleefully overturned their own precedents on everything from administrative law to affirmative action to prayer in schools, so the fact that buffer zones were found to be constitutional in 2000’s Hill v. Colorado doesn’t mean much—to them.
With that, many people expected the court would take up Turco v. City of Englewood or Coalition Life v. City of Carbondaleboth of which challenged the same type of buffer zones already ruled constitutional in Hill. In brief, buffer zones provide a small space around an abortion clinic patient that anti-choicers can’t enter. In both Turco, a New Jersey case, and Coalition Lifeout of Illinois, the buffer zones were eight feet—a radius already explicitly approved of by Hill.
Predictably, anti-choice demonstrators loathe buffer zones. They argue they have a First Amendment right to “counsel” people who are going to abortion clinics, framing their efforts as gentle, persuasive conversations. Instead, what the record in Turco showed actually happened was that anti-choice protestors blocked access to the clinic, assaulted patient escorts, screamed directly into patients’ faces, and videotaped them.
Additionally, a meager eight-foot gap doesn’t prevent clinic patients from hearing protestors or seeing their signs. So, in terms of a First Amendment right to express oneself, all the buffer zones prevent is getting in the face of a patient and making them feel physically threatened. Protestors can still scream and wave their pictures of bloody fetuses—they just have to do it a few feet away.
According to Justice Clarence Thomas, the court’s failure to take up these cases and throw out buffer zones entirely was an “abdication of our judicial duty.” Yes, Thomas is big mad that only he and Justice Samuel Alito would have agreed to hear the cases. As Mark Joseph Stern pointed out over at Slateit isn’t unexpected that Thomas thought his conservative colleagues would join him in overruling Hill and ending buffer zones.
When Thomas wrote a dissent in a case about advertising signs in 2022, he worked in Hill, calling it an “aberration” and a danger to free speech. Justices Neil Gorsuch and Amy Coney Barrett signed onto the dissent in full.Thomas likely expected there would be the necessary four votes to hear the case, but for whatever reason, the conservatives on the court don’t want to touch this yet. Thomas, though, clearly sees it as a slam dunk, writing, “Following our repudiation in Dobbs [v. Jackson]I do not see what is left of Hill.”
What is left of Hillof buffer zones, is that abortion remains legal in blue states despite the best efforts of protestors and federal judges. In Alito’s majority opinion in Dobbshe waxed smugly about how it did not prohibit the states from regulating abortion and that in some states, “voters may believe that the abortion right should be even more extensive” than Roe.
However, anti-choicers don’t actually believe that other states should be allowed to keep abortion legal. That’s why GOP legislators are already introducing nationwide bans. That’s why Texas sued a New York doctor, attempting to pierce that state’s law shielding abortion providers. And that’s why anti-abortion activists are stepping up their protests in states where abortion remains legal and suing over the tiny protections that the buffer zones offer.
Those buffer zones are going to be increasingly necessary because the current administration has signaled it has no interest in stopping anti-choice protestors from being violent. A week into his second term, Donald Trump granted blanket clemency to 23 anti-abortion protestors, many of whom had violated the Freedom of Access to Clinic Entrances Act by blockading clinics and preventing patients from getting medical attention. Of course, Trump said these were all peaceful protesters, ignoring that they did things like crush a clinic staff member’s hand in a door and assault nurses.
Besides giving a pass to the most violent anti-choice activists, the administration also decided it’s not really going to bother to enforce the FACE Act. The law makes it a felony to obstruct access to a clinic or to injure or intimidate—or even just attempt to injure or intimidate—patients seeking reproductive health care. But last month, Chad Mizelle, chief of staff at the Department of Justice, issued a new memo saying that violations will only be prosecuted in “extraordinary circumstances” or situations involving aggravating factors like “death, serious bodily harm, or serious property damage.” The DOJ also dismissed three existing civil FACE Act cases brought by the Biden administration.
Additionally, DOJ prosecutors can’t bring any new abortion-related FACE Act actions without authorization from the assistant attorney general for the Civil Rights Division. Trump’s pick for that slot is Harmeet Dhillon, who, besides being a rabid election denierhas represented anti-abortion activists and called herself a “lawyer for the pro-life movement.” Somehow, it doesn’t seem like Dhillon will be signing off on prosecutions of violent anti-abortion activists any time soon.
Instead, those activists have essentially been promised they won’t suffer any consequences for their behavior. That’s especially bad news because anti-choice protestors were already emboldened by Dobbswith violence at abortion clinics spiking sharply in the year after the decision. The National Abortion Federation, which tracks anti-abortion violence, found a 538% increase in obstructions of clinic entrances and a staggering 913% jump in stalking of clinic staff, along with a 29% jump in assaults and batteries.
With this as the landscape facing patients and clinics, the minimal protections of buffer zones are more necessary than ever, so it’s a genuinely good thing that the Supreme Court punted on this for now. But conservatives will keep bringing these cases and keep hammering at this court until they find one that sticks.
Campaign Action
