In a shadowy city hall basement meeting last July, city officials in a southern Illinois college town swiftly and quietly repealed their controversial “no-speech zone” ordinance, a city law intended to silence pro-life advocates. While the repeal marked a small victory for Coalition Life’s sidewalk counselors in Carbondale, Illinois, this extraordinary city council meeting exposed a larger strategy to keep the abortion lobby’s censorial regime on life support and delay constitutional scrutiny at the highest level.
So far, it appears to have paid off. On Feb. 24, the United States Supreme Court declined to hear our appeal in Coalition Life v. Carbondale, which had asked the high court not just to hold Carbondale accountable but to restore pro-life sidewalk counselors’ First Amendment rights by overruling itself in Hill v. Colorado.
In May 2023, Thomas More Society attorneys took Carbondale to federal court on behalf of Coalition Life, knowing full well this case would eventually need to knock at the doors of the Supreme Court. That’s because lower courts are bound by Hill, a 2000 Supreme Court ruling that permitted certain types of no-speech zones, such as Carbondale’s. In Hill, the court upheld a Colorado law making it unlawful for any person within 100 feet of an abortion business entrance to “knowingly approach” another person within 8 feet, without that person’s consent, to engage in sidewalk counseling.
Egregiously wrong since the day it was decided, the high court has steadily eroded the precedent’s shaky foundations.
In Dobbs, the Supreme Court sounded the death knell for Hill — calling it out for having “distorted First Amendment doctrines” — but has yet to put the final nail in the coffin. In dissenting from Monday’s denial, Justice Clarence Thomas did not mince words.
“Hill has been seriously undermined, if not completely eroded, and our refusal to provide clarity is an abdication of our judicial duty,” Thomas wrote.
Indeed, the court’s “abdication” of its duty opens the door to further restrictions on pro-life speech nationwide.
Shutting Down Speech Where It’s Needed Most
Following the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, the abortion industry descended upon Carbondale. Right at the southern tip of the Land of Lincoln, just over the border of pro-life states, the abortion industry saw in this rural college town the potential for the abortion tourism capital of the Midwest. Before the overturn of Roe, Carbondale had zero abortion businesses. Post-Roe, that count quickly jumped to three, in a city of fewer than 22,000 residents.
When Coalition Life, the nation’s largest professional sidewalk counseling organization, expanded its life-affirming efforts into Carbondale, the city council reacted by passing a no-speech law to hinder their valiant efforts. Ostensibly neutral, the city law was transparently intended to stifle pro-life speech. Inside a 100-foot perimeter around abortion businesses, pro-life sidewalk counselors were prohibited from approaching abortion-bound women within 8 feet — rendering impossible or ineffective sidewalk counselors’ ability to share information about alternatives, hand out leaflets, or offer compassionate counsel.
Speaking at the Munich Security Conference, Vice President J.D. Vance brought renewed attention to the radical no-speech zones that have been implemented across Europe to censor the pro-life message. Days after the vice president’s speech, a 74-year-old woman was arrested in Scotland for silently holding a pro-life sign near an abortion business. Local governments in the U.S. using no-speech zones to restrict pro-life speech are following these dangerous international trends, where free speech is being increasingly curtailed.
Legal Whack-a-Mole
In the wake of Dobbs, pro-life sidewalk counselors, who stand as the last line of defense for the unborn, now find themselves in an increasingly hostile legal environment. With abortion no longer federally protected, the abortion lobby has increased its efforts to stifle pro-life speech, with cities like Carbondale being one microcosm of this campaign. Last year, major cities such as Detroit and San Diego followed suit in enacting no-speech zones to target pro-life speech. Virginia state lawmakers are currently considering a no-speech zone law that would apply statewide.
This brings us back to Carbondale’s hasty repeal. Only three days before our appeal’s filing deadline at the Supreme Court, Carbondale decided to ditch its no-speech zone and repealed it in an extraordinary, four-minute-long weekend meeting. By repealing the city law, Carbondale’s leaders hoped to take one for the team — that is, to render the pending Supreme Court challenge moot and keep Hill v. Colorado on the books.
This is not the first time such a maneuver has been used to avoid accountability in the face of a looming Supreme Court challenge. In 2023, Vitagliano v. County of Westchester asked the Supreme Court to overturn Hill in a challenge to a no-speech zone nearly identical to Carbondale’s. But soon after the Supreme Court challenge was filed, Westchester County, New York, repealed its no-speech zone. Westchester’s legal gamesmanship was rewarded, and the court ultimately declined to hear Vitagliano.
Once is happenstance; twice is a pattern. Carbondale, reading Westchester’s playbook, understood that its no-speech law likely wouldn’t survive constitutional scrutiny if reviewed by the Supreme Court. But if this pattern continues, it will lead to an unsustainable cycle of “Whack-a-Mole” legal challenges as local governments repeal their dubiously constitutional no-speech zones anytime they may reach the Supreme Court — shielding one of the abortion industry’s favorite legal tools from fatal scrutiny. This tactic cannot be allowed to continue.
In the post-Roe era, restoring the free speech rights of pro-life sidewalk counselors is of paramount importance, and Hill v. Colorado must be overturned to do so. The ability to speak freely in public spaces is a critical part of the pro-life movement’s mission to offer women a real choice. The battle for life is also a legal battle for the right to speak freely, offer alternatives, and advocate for a cause grounded in truth and compassion.
In a future term, the Supreme Court will have no choice but to finally close the door on Hill v. Colorado and end this pattern of legal gamesmanship once and for all. The future of our First Amendment liberties and the lives of countless women and children depend on the outcome.
Thomas Olp is an executive vice president at Thomas More Society, a national nonprofit public interest law firm defending life, family, and freedom. He holds an L.L.M. from Georgetown University Law Center and a J.D. from The Catholic University of America, Columbus School of Law.
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