On Monday, the Supreme Court denied certiorari in Coalition Life v. City of Carbondale, the latest challenge to the pernicious decision in Hill v. Colorado (2000) that upheld “buffer zones” around abortion clinics. Six months after Dobbs v. Jackson Women’s Health Organization (2022) overruled Roe v. Wade, the city council of Carbondale, Illinois, passed an ordinance that was virtually identical to the 1993 Colorado statute upheld in Hill. Both laws made it a crime to knowingly approach within eight feet of another person without their consent “for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person.”

In Hill, the majority avoided the strict scrutiny to which content-based speech restrictions are generally subject by unconvincingly framing the Colorado law as content neutral. Justice Antonin Scalia’s dissent called the law out as “obviously and undeniably content based. A speaker wishing to approach another for the purpose of communicating any message except one of pro­test, education, or counseling may do so without first secur­ing the other’s consent.” Justice Clarence Thomas, who joined Scalia’s dissent, penned his own dissent from the denial of certiorari in City of Carbondale and quoted Scalia’s language. “[T]his Court had never—and since Hill, has never—taken such a narrow view of content-based speech restrictions,” Thomas added.

Hill was a case of the abortion distortion, which as Scalia put it is how “the jurisprudence of this Court has a way of changing when abortion is involved.” Thomas charged that “Hill’s abortion exceptionalism turned the First Amend­ment upside down,” “manipulat[ing] this Court’s First Amendment jurisprudence precisely to disfavor” those who oppose abortion. And Hill has in fact been eroding as a precedent, not only in other speech contexts that applied a different standard (e.g., the sign code struck down in Reed v. Town of Gilbert (2015)), but also in the context of an abortion clinic buffer zone the Court struck down in McCullen v. Coakley (2014). In a dissent in a speech case decided in April 2022, City of Austin v. Reagan National Advertising, Justices Neil Gorsuch and Amy Coney Barrett joined Thomas’ opinion blasting Hill as an “erroneous” and “long-discredited” “aberration” while the majority did not cite the 2000 precedent at all. Two months later, the Dobbs decision, reflecting the views of five justices, noted that Hill “distorted First Amendment doctrines.”

“Following our repudiation in Dobbs,” Thomas concluded, “I do not see what is left of Hill.” At least five justices likely hold this view. The Carbondale city council itself likely agrees. Why else would it have taken the step of repealing the ordinance last summer, if not to avoid an adverse Supreme Court decision? As Thomas points out, that development does not render this case moot, because Coalition Life sought nominal damages for the First Amendment violations that took place over the period of time when the ordinance was in place. Still, Justice Samuel Alito is the only other justice to dissent—without opinion in his case—from the denial of certiorari in City of Carbondale. Although cert grants are obviously discretionary, I agree with the two justices that the Court should have taken this case and hope the Court will take another case that presents a cleaner opportunity to revisit this issue. Until the Court explicitly overrules Hill, many lower courts can be expected to follow it, whether out of honest confusion or hostility to Dobbs. And as long as Hill has a judicial following, that aspect of the abortion distortion will remain with us.