In February, the United States Supreme Court declined to hear Coalition Life v. Carbondale, our challenge to the constitutionality of “bubble zone” ordinances designed to prohibit pro-life advocates from sidewalk counseling outside of abortion facilities.

The case, if it had been granted certiorari, would have given the Supreme Court the opportunity to revisit and overrule its previous decision in a 2000 case called Hill v. Colorado, which set the precedent upon which most unconstitutional no-speech zones across the nation are based and allowed to continue silencing pro-life advocates.

Unfortunately, at this time, the Supreme Court did not take the opportunity to revisit the critical matter of overturning Hill and restoring free speech rights to pro-life Americans. However, Justice Clarence Thomas, dissenting from the denial of certiorari, highlighted the ongoing significance of this battle for pro-life free speech—making clear that Coalition Life v. Carbondale will not be the last time that this inescapable issue is brought before the Court. The dissent did not mince words and is well worth a read.

Here are five key quotes from Justice Thomas’ blistering dissent:‍

1. “It is unclear what, if anything, is left of Hill. As lower courts have aptly observed, Hill is ‘incompatible’ with our more recent First Amendment precedents.”

Justice Thomas referred here to the opinion of the Seventh Circuit Court of Appeals in Price v. Chicago (2019), an earlier challenge to Hill v. Colorado that was litigated by Thomas More Society's Thomas Olp. In that decision, the federal appeals court held that its hands were tied by Hill, but in an opinion authored by the eminent legal mind, Chief Judge Diane Sykes—and joined by then-Judge Amy Coney Barrett—argued that Hill’s foundation was “deeply shaken” by the Court’s rulings since 2000.

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2. “Hill manipulated this Court’s First Amendment jurisprudence precisely to disfavor ‘opponents of abortion’ and their ‘right to persuade women contemplating abortion that what they are doing is wrong.’”

In quoting Justice Antonin Scalia’s eloquent dissent in Hill, Justice Thomas pointed out how the Court’s 2000 ruling did (and continues to do) violence to the core principles of the First Amendment. Rather than protecting the principle that debate on public issues should be uninhibited, robust, and wide-open, Hill v. Colorado clamped down the public abortion debate and gave preference to one side over the other.

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3. “Hill’s abortion exceptionalism turned the First Amendment upside down.”

Most clearly in Dobbs, and since, the Supreme Court has recognized the “abortion distortion” factor in their past decisions since Roe and Casey—meaning that the abortion issue has distorted the Court’s jurisprudence, especially on questions of constitutional rights. In the Dobbs opinion, the majority of the Court held that the Court’s abortion jurisprudence had “distorted First Amendment doctrines—and pointed directly to Hill v. Colorado as the hallmark example of this problem.

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4. “It was clear at the time that Hill’s reasoning ‘contradict[ed] more than a half century of well-established First Amendment principles.’ ... 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.

Since its 2000 decision in Hill v. Colorado, the Supreme Court’s subsequent decisions have slowly chipped away at its legal foundations. Most explicitly, as Thomas notes, Supreme Court decisions in McCullen v. Coakley (2014), to Reed v. Town of Gilbert (2015) ran contrary to the spirit and foundation of Hill, diminishing the 2000 decision significantly. Unfortunately, that has not stopped lower courts from relying on the precedent to uphold restrictions on pro-life free speech rights.

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5. “Hill has been seriously undermined, if not completely eroded, and our refusal to provide clarity is an abdication of our judicial duty... 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.”

Justice Thomas, in the conclusion to his dissent, did not hold back—calling the Court’s decision to punt the case an “abdication” of the Court’s “judicial duty.” In Coalition Life v. Carbondale, the abortion lobby successfully avoided accountability in the face of a looming Supreme Court challenge through legal gamesmanship designed to evade constitutional scrutiny. This is now becoming a pattern and a legal strategy aimed at keeping Hill on the books.  

In a future term, the Supreme Court will have no choice but to finally close the door on Hill v. Colorado and end this unsustainable cycle. To further understand the problem of “legal Whac-A-Mole” that the abortion lobby hopes will leave intact their favorite pro-abortion precedent, read Thomas More Society EVP Thomas Olp's editorial in The Federalist: Why SCOTUS Should Nuke ‘No-Speech Zones’ Once And For All.

To read Justice Clarence Thomas’ full dissent from the denial of certiorari in Coalition Life v. Carbondale, click here.