SCOTUS just gave abortion clinics a rare win

On Monday, the Supreme Court handed abortion rights advocates a rare win when they declined to take up a pair of cases seeking to challenge a decades-old decision limiting protesters’ actions near the entrances of abortion clinics. But, experts say that even though this result is positive, the decision’s reach is limited and does nothing to roll back the near impunity the Trump administration has extended to anti-abortion protesters who target abortion clinics.

Anti-abortion activists who brought the cases sought to overrule Hill v. Colorado, a 2000 decision in which a majority of the justices upheld a Colorado law requiring that abortion protesters obtain consent before coming within eight feet of another person to speak to them or distribute leaflets within 100 feet of the entrance of a health care clinic, including abortion clinics. That decision came after two decades of escalating violence—including bombings and murders—that abortion opponents perpetrated against abortion clinics and providers. The Hill decision paved the way for more cities and states to enact “buffer zone” laws restricting protests outside clinics, which have become even more relevant following the court’s June 2022 decision in Dobbs v. Jackson Women’s Health Organization that overruled Roe v. Wade. In the year after Dobbs, violence and threats against abortion providers and clinics skyrocketed, according to the National Abortion Federation, a professional network of abortion providers.

The cases seeking to challenge the Hill decision were also aimed at local buffer zone laws in Illinois and New Jersey. In the Illinois case, an anti-abortion group challenged a since-repealed 2023 ordinance passed by the city of Carbondale, which largely mimicked the law cited in Hill. The Carbondale City Council wound up repealing that law last July, with local officials arguing that there had been no violations since its passage. (The legal challenge against the ordinance was also already underway at the time of the repeal.) In the New Jersey case, a conservative Christian legal organization challenged eight-foot buffer zone restrictions outside both health care and transitional facilities—such as domestic violence shelters—that the city of Englewood established in 2014.

In Monday’s decision, Justices Clarence Thomas and Samuel Alito said they would have taken up both cases. In his dissent in the Illinois case, Thomas wrote that the Hill decision had been weakened by both Dobbs—in which the majority characterized Hill as having “distorted First Amendment doctrines”—and the court’s ruling in McCullen v. Coakley, a 2014 case in which the justices unanimously agreed that a Massachusetts buffer zone law violated the First Amendment. “Hill has been seriously undermined, if not completely eroded, and our refusal to provide clarity is an abdication of our judicial duty,” Thomas wrote in his dissent Monday, adding, “I would have taken this opportunity to explicitly overrule Hill.”

Abortion rights advocates took the court’s rejection of the cases as a win, albeit a limited one.

Katie O’Connor, director of federal abortion policy at the National Women’s Law Center, said that while the organization was “relieved” to hear about the court’s decision, “anti-abortion extremists are now more emboldened” thanks to Trump.

Last month, for example, Trump’s DOJ announced it would limit enforcement of the Freedom of Access to Clinic Entrances (FACE) Act, a 1994 federal law that prohibits physical force, threats, or intimidation against people trying to access reproductive health clinics. While the law has been used to prosecute both anti-abortion protesters targeting abortion clinics and abortion rights protesters targeting anti-abortion crisis pregnancy centers, Trump baselessly claimed the Biden administration “selectively weaponized [the law] against Christians.” The new DOJ guidance—which says the FACE Act should only be used in “extraordinary circumstances” or cases involving “death, serious bodily harm, or serious property damage”—reportedly has abortion providers bracing for more intense protests and fearing more violence. (The DOJ’s directive to limit FACE Act enforcement, though, does not override the legality of buffer zones, which are controlled by state and local law enforcement.)

And, of course, Trump also pardoned nearly two dozen people who were charged with violating the FACE Act just a few days after assuming office. One of them, Paulette Harlow, Trump falsely said “was put in jail because she was praying”—a claim that even her former attorney said was untrue. As I previously reported, court records state that Harlow was part of a group of people who broke into a DC abortion clinic in October 2020 and livestreamed it on Facebook. Once inside, Harlow body-slammed a clinic manager, chained herself to other protesters, and resisted arrest. (Harlow denied the allegations against her at trial, despite video evidence proving otherwise.)

According to Amy Friedrich-Karnik, director of federal policy at the reproductive rights research and policy organization the Guttmacher Institute, those actions from the Trump administration “made its stance on violence against abortion clinics and providers clear”—making buffer zones “more important than ever.”

“No patient should have to encounter threats, intimidation, and attacks while seeking health care—and no medical provider or health center staff should be threatened because of their work to deliver abortion care to patients in need,” Alexis McGill Johnson, president and CEO of Planned Parenthood Federation of America, said in a statement, adding that buffer zones “help to create a safer environment for patients, providers, and staff.”

As David Cohen, a law professor at Drexel University who has written extensively about reproductive rights law and violence against abortion providers, pointed out, the significance of Monday’s decision is limited partly because he estimates there are fewer than a dozen buffer zone laws nationwide. He also cautioned against reading too much into the Supreme Court declining to take up the case, given that it only hears a tiny fraction of the cases that appear before it.

But, still, Cohen said the decision is meaningful for allowing buffer zones to stand at all given the on-the-ground power they wield when enforced by local law enforcement. “I think what [Trump has] done with respect to FACE means that there is even more importance on these local buffer zones,” he told me. “The message that his actions around the FACE Act send to anti-abortion extremists are potentially very scary for the next several years.”