Yes, that is technically a win for reproductive rights, except it comes weeks after the Trump administration made two major moves that embolden people to harass clinic staff and patients. In January, Trump pardoned 23 anti-abortion activists convicted under the Freedom of Access to Clinic Entrances Act, while effectively greenlighting violence at abortion clinics by saying it would limit enforcement of the existing federal law. But, chillingly, Justice Clarence Thomas suggested that the 25-year-old legal precedent that undergirds buffer zones was already dead. So how much of a victory is it, really?
The cases involved laws in Carbondale, Illinois, and Englewood, New Jersey, passed in 2023 and 2014, respectively, that protect abortion seekers and clinic staff from protestors entering their personal space without permission—specifically establishing an 8-foot bubble around them. Anti-abortion groups challenged the laws as violations of their First Amendment right to free speech and argued that a Supreme Court decision from 2000 that first upheld a buffer zone—a case called Hill v. Colorado—should be overturned. (Buffer zones set perimeters around clinics, while bubble zones protect the personal space of patients and clinic staff.)
Justices Thomas and Samuel Alito said that they would have heard the cases, and Thomas wrote a dissent saying that Hill was already “defunct” and compared it to a different precedent that the court had “long ago abandoned” without officially overturning it. Thomas said the same thing was happening here, writing, “I would have taken this opportunity to explicitly overrule Hill,” and arguing that the justices had a duty to provide clarity to lower courts.
But it takes four votes to take a case, so Thomas appears to have been two votes short.
As Mark Joseph Stern noted in Slate, the conservative justices have laid the groundwork over the past decade to overturn Hill: Chief Justice John Roberts wrote the opinion that narrowed Hill in a 2014 case, McCullen v. Coakley, and Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett have all signaled their skepticism of the precedent since then. So it’s a bit surprising they didn’t jump at the chance to end it here, but perhaps, as Stern argues, they don’t want to make any more abortion rulings than necessary right now.
The court heard two abortion-related cases last term and punted on both of them, though the litigation continues and the cases could land back in their laps in the coming months. In April, the justices are also set to hear one case that is indirectly related to abortion, about whether states can “defund” Planned Parenthood by kicking the organization out of Medicaid for non-abortion services. Plus, red-state challenges to shield laws allowing doctors to prescribe abortion pills across state lines are currently on a collision course up to the high court.
So SCOTUS may be hesitant to take on another abortion case, but, at the end of the day, if the state and local clinic protection laws are already defunct, like Justice Thomas writes, the court doesn’t need to overrule them in order for anti-abortion groups to cause chaos. Thomas suggests that if clinics try to enforce the laws and get sued, courts could find them to be unconstitutional.
Plus, other protections from anti-abortion violence are being gutted, namely aforementioned Freedom of Access to Clinic Entrances Act, or FACE Act, a 1994 law passed in response to clinic blockades and murders of abortion providers. During Trump’s first week in office, his Department of Justice told federal prosecutors they should only enforce the FACE Act in “extraordinary circumstances,” such as in incidents involving death, extreme bodily harm, or significant property damage, according to CBS News. The DOJ also dropped three active FACE Act investigations into 2021 clinic blockades in Tennessee, Pennsylvania, and Ohio. It’s practically an invitation for anti-abortion violence and harassment.
Calling Monday’s decision a victory is a bit like thanking your schoolyard bully for not beating you up. It’s merely a de facto reprieve.
