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The Fallout: Abortion Buffer Zones, Hobby Lobby, Goodbye Ginsburg?

By William Peacock, Esq. on July 09, 2014 | Last updated on March 21, 2019

Supreme Court cases are interesting. But equally interesting is what happens next.

For example, who would've thought that last year's decision in Windsor would, within one year, lead to more than twenty court decisions in favor of gay marriage. Even in Justice Antonin Scalia's worst nightmares, it didn't happen that quickly.

The Court's term just ended, but the fallout has been immediate: the ruling against a Massachusetts abortion protest buffer zone has already led local governments to reevaluate their own variants of the laws, while the media continues to lament the Court's decision in the contraceptive coverage cases, especially after the Court issued a controversial order late last week regarding exemption paperwork.

And, of course, the left is still freaking out about Justice Ruth Bader Ginsburg's age and unwillingness to retire.

Buffer Zones Aborted

The decision in McCullen v. Coakley was odd and unexpected: a few years after upholding Colorado's floating "bubble" buffer around individuals who were within eight feet of a clinic, the Court struck down a 35-foot strict buffer for clinics themselves. It did so by finding that the law was not narrowly tailored enough, suggesting instead that criminal harassment laws could be used to curb abusive protests near clinics.

In dissent, Justice Scalia lamented the means taken by the majority and called into question the vitality of Hill v. Colorado, which the majority barely mentioned. We noted that the decision was likely to lead to a number of jurisdictions reevaluating their buffers: from San Francisco's 25-foot strict rule, to Maine's 39-foot version.

Indeed, that's exactly what has transpired: Portland, Maine repealed their law earlier this week, San Francisco is sticking to its guns, and Madison, Wisconsin has stopped enforcing its Colorado-esque eight-foot floating buffer for individuals, reports the Los Angeles Times.

Hobby Lobby's Ongoing Parade of Horribles

As we noted on our Tenth Circuit blog, Justice Ruth Bader Ginsburg predicted a lot of negative consequences from the Court's opinion of "startling breadth": big corporations ditching contraceptive coverage, companies using religious beliefs as an excuse to discriminate, and other religious beliefs leading to coverage exemption requests for common procedures, such as immunizations.

Most of those concerns were set aside by Justice Samuel Alito, in the majority opinion, when he emphasized that the Court's opinion was based, in large part, on the existing exception for nonprofit religious organizations from contraceptive coverage: other exceptions would be much, much harder to justify.

And then, later that week, he undermined his claims of a narrow holding when the Court granted an exemption for the exemption for groups that have religious objections to the paperwork.

It has Kent Greenfield, a Boston College law professor, arguing that the court's so-called limited opinion was far broader than it seems. He predicts consequences far greater than even Ginsburg predicted.

Oh, and this could all be moot soon: Congress is gearing up to legislatively "fix" the Court's decision, reports Politico. Good luck getting a bill past the Republican-led House, however.

Goodbye Ginsburg?

Speaking of Justice Ginsburg, what's it been -- two weeks since we've last head a wave of cries for resignation? We suppose those folks were disappointed that the Notorious RBG didn't step aside at the end of the term, as most retiring justices usually do.

They're now encouraging her to do so ASAP, reports The Hill, as the midterm elections could lead to a Republican-controlled Senate. Such an outcome would all but guarantee a moderate or conservative replacement for the Court's leading liberal if she retires in the next two years, shifting the balance on the court from slightly conservative to even further rightward.

At 81 years of age, it does seem like only a matter of time, but as she has pointed out repeatedly: she's still as brilliant, feisty, and productive as ever.

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