At the same time, the court vacated wins for abortion rights advocates challenging two Indiana abortion restrictions. It sent the cases back for reconsideration in light of the reasoning the Supreme Court used in striking down Louisiana’s restrictions on abortion clinic doctors.
In the protest cases, antiabortion groups wanted the justices to reexamine the court’s 2000 decision in Hill v. Colorado, in which it upheld that state’s law that established a 100-foot buffer zone around the entrances to medical facilities. Violent clashes sometimes occur between antiabortion protesters and women and their supporters entering clinics.
The challengers said the Supreme Court’s free speech decisions since Hill have undermined the precedent. For instance, the court in 2014 struck down a Massachusetts law that allowed only certain people in a 35-foot zone around entrances to facilities.
The Chicago law says that within 50 feet of the entrance to an abortion clinic or other medical facility, a person needs consent to come within eight feet of someone to pass out leaflets or to engage in “oral protest, education, or counseling.”
“Under the ordinance, one can, without consent, approach a person within the ‘bubble zone’ to solicit donations for a charity, sell Cubs tickets, campaign for a candidate, or panhandle. One can also approach without speaking at all,” wrote lawyers for the Thomas More Society. “But certain speech is declared illegal: it is unlawful to approach that same person to ‘educate’ or ‘counsel’ her about alternatives to abortion.”
A unanimous panel of the U.S. Court of Appeals for the 7th Circuit reluctantly upheld the Chicago ordinance, saying that the court’s subsequent decisions “have deeply shaken Hill’s foundation.”
The panel contained two judges whom Republican presidents considered for the Supreme Court: Diane S. Sykes and Amy Coney Barrett. They said they had no authority to overturn the law.
Hill “remains on the books and directly controls here,” Sykes wrote, adding: “Only the Supreme Court can bring harmony to these precedents.”
But the same Supreme Court majority that struck the Massachusetts law and yet distinguished it from Hill remains on the court — Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.
The court also declined to hear a similar ordinance from Harrisburg, Pa. It was enacted after disruptions at abortion clinics in the city, and was affirmed by the U.S. Court of Appeals for the 3rd Circuit.
The decision in the Indiana cases will give the state another chance to defend its laws, which were enacted when Vice President Pence was governor. The 7th Circuit panel had blocked both.
One law expands the requirement that a woman seeking an abortion undergo an ultrasound. The new requirement that it be done at least 18 hours before an abortion was unduly burdensome, the court said, because it prolonged the waiting period for women who had to travel for the procedure.
The other requires parental notification when a girl younger than 18 seeks an abortion, even if she had asked a court to provide consent, instead of her parents.
It is not unusual for the Supreme Court to send back some cases for reconsideration when it has recently decided a related case. But abortion rights advocates worry that Roberts’s concurring opinion in the Louisiana case might make it more difficult to prevail in some cases.
“On Monday, we said this fight was far from over, and these orders today prove it,” Alexis McGill Johnson, president of Planned Parenthood Federation of America, said in a statement. “Let’s be clear — these laws are medically unnecessary, burdensome and unconstitutional.”