Justice Thomas Urges the Court to Revisit Abortion-Clinic ‘Buffer Zones’ and Free Speech


Late last week, the Supreme Court denied a petition for a writ of certiorari in the case Bruni v. City of Pittsburgh, which asked the Court to consider, in part, whether the city’s policy of placing “buffer zones” around abortion clinics to bar protesting or prayer violated the First Amendment’s free speech clause.

Though he agreed with the Court’s decision not to hear the case, Justice Clarence Thomas issued an interesting statement pointing out contradictions in how the Court has dealt with the issue of buffer zones around abortion clinics.

Thomas affirmed that these zones “often impose serious limits on free speech” and often “even prohibit certain one-on-one conversations.” Though the Court upheld a buffer-zone policy in 2000 in Hill v. Colorado because the measure satisfied the intermediate-scrutiny standard, Thomas argues that the use of intermediate scrutiny in that case is “incompatible with current First Amendment doctrine,” citing Reed v. Town of Gilbert and McCullen v. Coakley.

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“These more recent decisions establish that strict scrutiny is the proper standard of review when a law targets a ‘specific subject matter . . . even if it does not discriminate among viewpoints within that subject matter,’” Thomas writes. “I agree with the Court’s decision not to take up this case [Bruni v. City of Pittsburgh] because it involves unclear, preliminary questions about the proper interpretation of state law. But the Court should take up this issue in an appropriate case to resolve the glaring tension in our precedents.”

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