When the Supreme Court overturned Roe v. Wade in 2022, the majority complained that prior abortion rulings had “distorted First Amendment doctrines.” The case the court cited for that proposition was Hill v. Colorado, a 2000 decision that 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.
A new petition to the justices this week asks the court to overrule Hill — and there’s reason to think the court will do it.
Hill was decided 6-3 in 2000, when the court’s composition was much different than it is today (as one may have guessed from the Dobbs majority’s disapproving citation). Justice Clarence Thomas, who dissented in Hill, is the only justice from that original ruling who is still on the court.
The new petition comes from the anti-abortion group Coalition Life. It challenges a Carbondale, Illinois, ordinance that it says is 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,” the group said in the petition filed by the group’s legal representatives, the Thomas More Society and Paul Clement, a top conservative Supreme Court lawyer. “This Court has a better option,” it said: overrule Hill.
The city has an opportunity to respond before the court considers whether to grant review, which takes four justices. Based on the majority’s negative reference to Hill in the Dobbs decision — on top of the court’s First Amendment rulings since Hill — it appears there are at least that many justices who would consider overturning Hill. And Coalition Life’s is not the only petition seeking to ditch the 2000 precedent. There’s another one pending before the justices, filed by the American Center for Law and Justice, whose chief counsel is Trump impeachment lawyer Jay Sekulow, who argued Hill for the challengers. Whether in these pending appeals or any another, the issue is one to watch as the court fills out its docket for the next term, which starts in October.
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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