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

The Supreme Court may soon consider two cases that could dismantle limits on how close protesters can be 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 expression 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 the limits say they are essential. Melissa Fowler, program director for the National Abortion Federation, said that since Roe v. Wade was overruled, protesters traveled from states where clinics were closed to states where they remain open.

While there are some protections for clinics, including the federal Freedom of Access to Clinic Entrances Act or the FACE Act, which makes it a crime to block an entrance to a facility, patients and staff can still face intimidation.

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

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

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

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

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

In response to what was later described in court documents as a “sharp increase” in intimidation, threats and interference from protesters, the city passed an ordinance in January 2023 that drew a 100-foot perimeter from the entrance to the healthcare facilities, in which protesters were prevented from coming within 2.5 meters of a person without their permission.

Several other cities have requested similar laws; a new one was just approved by the Detroit City Council.

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

“This had a very serious chilling effect as our team on the ground didn’t know whether they would cross a certain threshold or be arrested,” said Brian Westbrook, the group’s founder and executive director. “It definitely cooled our speech. This continues to cool our behavior there as well.”

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

But Coalition Life is moving forward with its lawsuit 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 Carbondale’s 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 records.

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

In New Jersey, a similar case was brought by an anti-abortion activist who is challenging a buffer zone for health care facilities in Englewood, describing the restricted areas outside a local abortion clinic as an “obstacle course” that “clearly ‘abbreviates’ 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 politics 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 certain restrictions on protests.

“You cannot have protests on the steps of the Supreme Court,” he said. “You cannot have leaflets near a voting booth. You have to allow people to freely enter and exit the polling place.”

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

Neither petition was scheduled to be discussed by Supreme Court justices. Four justices will have to agree to hear the cases in order for the court to hear oral arguments and issue a ruling.

The Supreme Court has yet to take up an abortion-related case this term. On Monday, it rejected a call from the Biden administration to hear a case over a policy aimed at ensuring patients in Texas could receive emergency abortion care. It also dismissed a case involving an Alabama Supreme Court ruling that threatened access to in vitro fertilization in the state.