Over dissent from Justices Clarence Thomas and Samuel Alito, the Supreme Court on Monday declined to take up appeals that asked the justices to ditch another abortion-related precedent, following the Republican-appointed majority’s 2022 Dobbs decision that overturned Roe v. Wade.
The precedent at the center of the newly rejected petitions is Hill v. Colorado, which approved so-called buffer zones around abortion clinics. The 2000 decision upheld a law that barred approaching people without consent outside of a health care facility for the purpose of leafletting, displaying signs, protesting, educating or counseling. The court split 6-3 in the Hill case, with Thomas (one of the Hill dissenters) being the only one still on the high court today.
While Alito simply noted without explanation that he would have granted review of the issue, Thomas laid out his latest disagreement in an eight-page dissent on Monday, noting that the Dobbs majority (which included him and Alito) said the Hill case had “distorted” the court’s First Amendment doctrines. Thomas wrote: “Following our repudiation in Dobbs, I do not see what is left of Hill. Yet, lower courts continue to feel bound by it. The Court today declines an invitation to set the record straight on Hill’s defunct status. I respectfully dissent.”
In line with the court’s typical practice, the majority did not explain on Monday why it declined to review the appeals challenging Hill. The denial came on the court’s routine order list, where the justices take action in pending appeals consisting mostly of rejecting petitions. The court only grants review in a relative handful of the thousands of petitions it receives annually. It takes four justices to grant review, and it would not have been surprising had the court done so here, given the current majority’s view on both abortion and speech-related issues.
Thomas’ written dissent came in one of the rejected appeals from an anti-abortion group called Coalition Life. The group challenged an ordinance in Carbondale, Illinois, that it said was virtually identical to the one that the court upheld in Hill, which set the zone within 100 feet outside a facility and within 8 feet of a person. “The lower courts had no choice but to uphold that carbon-copy measure. This Court has a better option,” the group said in the petition filed by lead counsel Paul Clement, a top conservative lawyer (who, coincidentally, was just appointed to weigh in on the propriety of the Trump Justice Department’s bid to dismiss criminal charges against New York City Mayor Eric Adams).
Represented by Neal Katyal, another top high court lawyer, Carbondale opposed the petition, telling the justices that the city had since repealed the ordinance at issue without ever having enforced it. The Illinois city argued in its opposition brief that “no case or controversy exists” for the court to review, further contending that Hill had been correctly decided in any event. A separate petition seeking to overturn Hill in a New Jersey case came from the American Center for Law and Justice, whose chief counsel is Trump impeachment lawyer Jay Sekulow, who argued Hill for the challengers. Thomas and Alito likewise noted their disagreement with the court’s refusal to take up the New Jersey case, Turco v. City of Englewood. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in Donald Trump’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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