Supreme Court Justice Clarence Thomas assailed the high court's decision Monday to not take up a challenge to abortion clinic buffer zones that he asserts trample First Amendment protections, calling the refusal an "abdication of our judicial duty."
The court turned away appeals by self-described "sidewalk counselors" in New Jersey and Illinois of lower court decisions to throw out their lawsuits that had claimed the buffer zones violate free speech protections under the U.S. Constitution's First Amendment. The activists were asking the Supreme Court to overturn its 2000 ruling in Hill v. Colorado allowing a Colorado buffer zone law.
Thomas and Justice Samuel Alito dissented; only Thomas filed a written rebuttal.
"Hill has been seriously undermined, if not completely eroded, and our refusal to provide clarity is an abdication of our judicial duty," Thomas wrote. "I would have taken this opportunity to explicitly overrule Hill. For now, we leave lower courts to sort out what, if anything, is left of Hill's reasoning, all while constitutional rights hang in the balance."
The legality of "buffer zones" that create a perimeter around abortion facilities, or "floating" zones that put distance between demonstrators and a clinic's patients or staff, has been legally contested for decades. Some municipalities in states where it remains legal have adopted buffer zone ordinances to limit intimidation and harassment, drawing legal challenges.
Thomas was on the Supreme Court for Hill and dissented in the 6-3 decision, Axios reported. He maintains now, as he did then, that errors in the case "were numerous," adding that it was clear at the time that Hill's reasoning "contradict[ed] more than a half century of well-established First Amendment principles," he wrote in Monday's rebuttal.
He added, "A number of us have since described the decision as an 'absurd,' 'defunct,' 'erroneous,' and 'long-discredited' 'aberration' from the rest of our First Amendment jurisprudence."
Further, since the Supreme Court overturned Roe v. Wade via the Dobbs decision in 2022, Thomas wrote, "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," he wrote.
Information from Reuters was used in this report.