In a ruling yesterday in Sisters for Life v. Louisville-Jefferson County, a unanimous panel of the Sixth Circuit preliminarily enjoined officials of Louisville-Jefferson County, Kentucky, from enforcing an ordinance that creates a ten-foot “buffer zone” around the entrance of abortion clinics and other health-care facilities. Chief judge Jeffrey Sutton wrote the opinion, and Judges Richard Griffin and John Nalbandian joined it.

The plaintiffs in the case are three individuals and two organizations that undertake to persuade women not to have abortions. They aim to distribute pamphlets to, and to talk with, women entering abortion clinics. The plaintiffs do not challenge a separate part of the ordinance that prohibits obstructing access to a health-care facility, and there is no evidence that they have ever violated that prohibition.

The panel first cites evidence that county officials intend to enforce the ordinance in a way that “exempt[s] pro-choice speakers while suppressing pro-life speakers.” If so, strict scrutiny would apply to the ordinance. The panel invites the district court on remand to carefully consider the evidence of content or viewpoint discrimination.

But even if the ordinance is applied in a content-neutral way, the panel explains, it still must be “narrowly tailored to serve a significant governmental interest.” Here, the county has not shown that it seriously undertook to address its concerns with less intrusive tools. In particular, it can’t explain why the ordinance’s separate (and unchallenged) ban on obstructing access won’t adequately serve its interests. It can’t explain why it is seeking to suppress the speech of peaceful, non-obstructive speakers.

The panel acknowledges that “there may be some tension between Hill [v. Colorado (2000)] (which upheld a floating bubble zone restriction) and McCullen [v. Coakley (2014)] (which invalidated a fixed buffer zone restriction),” but concludes that the ordinance “more closely resembles the fixed buffer zone invalidated in McCullen.” I’ll note that in McCullen, Justice Scalia argued in his opinion concurring in the judgment that the Court should have overruled Hill—which even liberal law professor Laurence Tribe called “slam-dunk simple and slam-dunk wrong”—and that it may implicitly, if inadvertently, have done so.

Disclosure: Judge Sutton and I have been friends since we clerked together for Justice Scalia more than thirty years ago, and we co-edited The Essential Scalia: On the Constitution, the Courts, and the Rule of Law, one of the books you will want to buy as a Christmas or Hanukkah gift for family and friends.