Supreme Court must decide whether abortion clinic ‘bubble zones’ stifle free speech

The Supreme Court may soon consider two cases that could remove limits on protesters’ proximity to people at abortion clinics and other health care facilities.

The cases argue that “buffer zones” around clinics and “bubble zones” around people who visit them violate the First Amendment.

“Americans either have the right to express themselves or they don’t. We should not practice viewpoint discrimination,” said Kristan Hawkins, president of Students for Life of America, an anti-abortion group, which filed an amicus brief in one of the cases.

But supporters of these limits say they are essential. Melissa Fowler, program manager for the National Abortion Federation, said that since the overturning of Roe v. Wade, protesters traveled from states where clinics have closed to states where they remain open.

Although there are some protections for clinics, including the federal Free Access to Clinic Entrances Act or the FACE Act which makes it a crime to block entry to a facility, patients and staff can still being bullied.

Buffer zones where protests are regulated, she said, allow “people to still have a space where they can protest, but it really protects people’s personal safety and autonomy.”

One of the cases the Supreme Court is set to consider comes from Carbondale, a southern Illinois college town that has become a critical access point to abortion care for residents of the South and Midwest. At least a dozen states in these regions have significantly restricted or banned the procedure.

Since the Supreme Court overturned Roe v. Wade, three abortion clinics have opened in Carbondale.

These arrivals also attracted opponents of abortion. Even if the protesters are not aggressive, their presence can be stigmatizing or uncomfortable for patients, said Jennifer Pepper, president and CEO of the Choices Center for Reproductive Health.

In the past, she said, some wore neon vests and posted a “check-in” sign in an apparent effort to keep patients away. “They just want to be left alone with their support to receive their health care,” she said of the sick. “They don’t want to be yelled at.”

In response to what it later described in court documents as a “marked increase” in intimidation, threats and interference from protesters, the city passed an ordinance in January 2023 that demarcated a perimeter of 100 feet to from the entrance of health care facilities, in which protesters were not allowed to approach within 8 feet of a person without their permission.

Several other cities have requested similar ordinances; a new bill has just been adopted by the Detroit City Council.

Almost immediately, Carbondale’s ordinance was challenged by Coalition Life, which filed a lawsuit in May 2023, calling the bubble zone unconstitutional.

“It had a very serious deterrent effect because our team on the ground didn’t know if they were going to cross a certain line or get arrested,” said Brian Westbrook, the group’s founder and executive director. “It definitely dampened our speech. This continues to chill our behavior there as well.

The Carbondale City Council then repealed the ordinance in July 2024. In court documents, the city said no one had been charged and that existing laws provided sufficient protection.

But Coalition Life is continuing its legal action to prevent the return of the bubble zone, asking the Supreme Court to overturn the precedent set in Hill v. Colorado.

In that 2000 decision, the justices ruled that a Colorado law with guidelines similar to those in Carbondale was constitutional.

In response to questions, a spokesperson for the Thomas More Society, the conservative law firm representing Coalition Life, referred NBC News to the firm’s legal filings.

“The need to restore the First Amendment rights eviscerated by Hill is all the more pressing after Dobbs,” the petition states, referencing Dobbs v. Jackson Women’s Health Organization, the 2022 Supreme Court decision that overturned Roe. He argues that bubble zones are more likely in places that support abortion rights, and that’s also where activists have “the greatest potential for impact.” In response, Carbondale’s attorneys defended Hill’s precedent and said the issue was moot since the ordinance had passed. already repealed. An assistant city attorney declined to comment on the case, citing the ongoing litigation.

In New Jersey, a similar case was brought by an anti-abortion activist who challenged the creation of a buffer zone for health care facilities in Englewood, describing restricted areas outside an abortion clinic. local abortion as an “obstacle course” that clearly “reduces” the right to freedom of expression. A spokesperson for the plaintiff’s law firm declined an interview request.

Englewood Mayor Michael Wildes, who supports the buffer zone, said, “It is important for us to balance our personal policies with the privacy and dignity of families making choices. »

David Cohen, a law professor at Drexel University’s Kline School of Law who has represented clinics in similar cases, said courts have allowed some restrictions on protests.

“You can’t have protests on the steps of the Supreme Court,” he said. “You can’t have pamphleteers around a voting booth. You have to allow people to enter and leave the polling place without hindrance.”

He said the justices may be reluctant to take up the Carbondale case, given that the order is no longer in effect, and may be wary of abortion-related cases in general after hearing two in during their last term. Last year, the justices declined to hear a case challenging a similar ordinance in Westchester, New York.

Neither motion has been scheduled to be discussed by the Supreme Court justices. Four judges will have to agree to hear the cases before the court can hear oral arguments and issue a decision.

The Supreme Court has yet to rule on an abortion-related case this season. On Monday, he rejected a call from the Biden administration to hear a case over a policy to ensure Texas patients can receive emergency abortion care. He also dismissed a case involving an Alabama Supreme Court decision that threatened access to in vitro fertilization in the state.