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(CNN) — The Supreme Court opted against hearing arguments in a pair of appeals Monday seeking to wipe out protest buffer zones around abortion clinics – a move that, for now, will leave those restrictions in place.
Two conservative justices – Clarence Thomas and Samuel Alito – said they would have heard the cases.
The precedent at issue, Thomas wrote in a brief opinion, “has been seriously undermined, if not completely eroded, and our refusal to provide clarity is an abdication of our judicial duty.”
Protected zones around clinics have been a legal issue for decades, but the fight was reanimated by the 2022 decision overturning Roe v. Wade. Most significantly, the conservative majority signaled in that opinion that it has deep reservations with the 24-year-old precedent allowing cities to create the protest-free areas.
In one case, a Missouri non-profit called Coalition Life challenged an ordinance in a Southern Illinois city, Carbondale, that bars people from coming within eight feet of a person entering a health care-facility to engage in “protest, education, or counseling.” Coalition Life organizes “sidewalk counselors” outside abortion clinics.
Carbondale ultimately repealed the ordinance this past summer.
A second appeal came from a sidewalk counselor in New Jersey, Jeryl Turco, who challenged Englewood’s eight-foot ban.
Lower courts tossed out both appeals based on a 2000 decision from the Supreme Court that upheld a similar buffer law in Colorado. But the counselors believed the time was right to revisit that precedent following the ruling two years ago in Dobbs v. Jackson Women’s Health Organization, which overturned Roe. Tucked into that opinion was a line asserting that the high court’s abortion precedents had “distorted First Amendment doctrines.”
That assertion carried a footnote citing the 2000 opinion on Colorado’s buffer zones.
Continuing to honor that precedent, the counselors told the Supreme Court, “is particularly problematic in the wake of Dobbs, as the whole point of that decision was to return the sensitive issue of abortion to the people.”
The counselors said the Supreme Court has been backing away from the 2000 decision anyway. In 2014, a unanimous court invalidated a Massachusetts law creating a 35-foot buffer zone around the entrances of abortion clinics.
City officials defending the zones also pointed to the Supreme Court’s decision to overturn Roe v. Wade – but for different reasons. They noted the decision had led many states to limit access to the procedure, which had led more patients – and counselors – to convene in states where abortion in clinics remains available.
“After Dobbs led to restrictions on abortion care in surrounding states and two new reproductive health care facilities opened in Carbondale, there was a marked increase in ‘acts of intimidation, threats, and interference from individuals protesting abortion access and services,’” the Illinois city said.
Lawyers for Carbondale said some protesters were blocking cars, misrepresenting themselves as medical personnel.
The-CNN-Wire
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