WASHINGTON − Shortly after the Supreme Court overturned the constitutional right to an abortion in 2022, a county in New York enacted a law prohibiting anti-abortion activists from confronting women outside abortion facilities.

When a religious organization petitioned the Supreme Court for intervention, officials in Westchester County scrapped the restrictions, and the justices opted not to engage with the case last year.

Now, anti-abortion organizations are alerting the justices against a potential “bait-and-switch.”

They are calling for the Supreme Court to review a similar ordinance in Carbondale, Illinois, that was annulled while the case was being prepared for the high court.

Anti-abortion advocates, along with several Republican attorneys general, are pressing the justices to use this case as a means to overturn a 2000 ruling − Hill v. Colorado − which supported limitations on protests near abortion clinics.

“It is time for the Court to reinstate the constitutional rights that were undermined by Hill, and this case is an ideal opportunity for such action,” wrote Paul Clement, a former U.S. solicitor general who has represented the anti-abortion group Coalition Life in more than 100 Supreme Court cases.

Getting close enough for eye contact versus an 8-foot distance

Coalition Life, based in Missouri, contends that its members need to approach women closely enough to establish eye contact while opposing abortion.

In the Hill v. Colorado case, the court ruled 6-3 that Colorado could restrict activists from getting within eight feet of another individual within a 100-foot radius of a healthcare facility.

The justices upheld this decision in 2014 when they struck down a 35-foot buffer zone outside abortion clinics in Massachusetts.

Alito criticized 2000 ruling when overturning Roe

However, the court condemned the 2000 ruling when it revoked Roe v. Wade in 2022. Justice Samuel Alito remarked that Hill “distorted First Amendment principles,” pointing to the repercussions of abortion legislation on broader legal frameworks.

Despite this warning, anti-abortion groups assert that some local governments have disregarded it.

In Westchester County, New York, officials implemented regulations similar to those that were supported by Hill.

A Catholic “sidewalk counselor” contested these rules, arguing they infringed her First Amendment right to have personal conversations with women entering a Planned Parenthood clinic.

While an appeals court upheld the restrictions, referencing the Supreme Court’s decision from 2000, Westchester County officials decided to repeal the rules after the Becket Fund for Religious Liberty sought Supreme Court review of that precedent. They were backed by Planned Parenthood, which agreed with the county that the restrictions were both unnecessary and hard to enforce.

The Becket Fund highlighted that the county’s attorney had expressed a desire to avoid Supreme Court scrutiny, believing “we know how the Supreme Court would rule if it ever came to that.”

Nevertheless, the justices chose not to take up the case last year.

Now the court has another opportunity to overturn its 2000 ruling.

Carbondale responds to rise in abortion demonstrations

The city of Carbondale in Southern Illinois experienced a surge in anti-abortion protests following the establishment of two reproductive health clinics designed to serve women from nearby states that imposed stricter abortion laws after the Dobbs v. Jackson Women’s Health Organization decision.

In response, the city council enacted regulations similar to those in Colorado. However, this ordinance was rescinded in July before any violations occurred.

City lawyers informed the Supreme Court that they assessed existing laws to sufficiently protect against “disorderly conduct.”

Claims by anti-abortion groups that the ordinance was repealed to evade Supreme Court involvement are merely speculation, according to Carbondale’s attorneys. They stated that any city is entitled to reassess its position for various reasons.

Attorneys general from Kentucky and 14 other states have voiced their concerns over the situation.

“If the Court accepts the strategy of repealing laws again, every government will have a guideline to follow if it wishes,” they stated in a filing to the court. “A government could create a law similar to Hill, allow it to be in effect for a year, two, or even longer while a legal challenge goes through the lower courts, and then repeal the law by the time the case reaches this Court. Meanwhile, Hill would still be in effect.”

New Jersey City Buffer Zone Also Before the Supreme Court

The Supreme Court may soon decide whether to hear this case along with another challenge from New Jersey.

An anti-abortion activist, represented by the American Center for Law and Justice, is challenging a 2014 ordinance from Englewood, N.J. that established a protest-free buffer zone around specific healthcare facilities. This buffer prevents the public from getting within 8 feet of clinic entrances.

In January, the 3^rd U.S. Circuit Court of Appeals determined that the restrictions were narrowly designed, do not infringe on the protesters’ First Amendment rights, and are less limiting than the regulations the Supreme Court upheld in 2000.

However, challengers will continue to urge the Supreme Court to take action until the 2000 ruling is revisited, said Jay Sekulow from the American Center for Law and Justice in their statement to the court.