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New Hampshire law allows, but doesn't require, abortion clinics to create a buffer zone around their facilities, of up to 25 feet. The public, with some exceptions, is excluded from that zone.
Abortion opponents sued to have the law overturned under the Supreme Court's McCullen v. Coakley decision, issued just a few days after the buffer zone law was enacted. Except there's a fatal flaw to that lawsuit, the First Circuit ruled last Wednesday: the law has never been activated or enforced.
A Buffer Zone Law That's Yet to Be Used
New Hampshire Governor Maggie Hassan signed New Hampshire's abortion buffer zone act into law on June 10th, 2014. Two weeks later, on June 26th, a unanimous Supreme Court decided McCullen, which held that a 35-foot abortion clinic buffer zone in Massachusetts violated the First Amendment.
For opponents of abortion and no-protest zones in New Hampshire, the road ahead seemed clear. Seven regular abortion clinic protestors and "sidewalk counselors" sued to have New Hampshire's law declared facially unconstitutional under McCullen.
But, as the First Circuit noted, that lawsuit was filed before any clinic had established a buffer zone. Unlike the Massachusetts law in McCullen, which created zones around all abortion clinics, the New Hampshire law let clinics chose to create their own zones -- or not. New Hampshire's law is further enforced civilly, with zones a necessary precondition to any civil suit. With no actual buffer zones in place, it followed that there had never been enforcement of the law.
No Injury to Stand On
That lack of activation or enforcement, the district court found, rendered the challenge premature. The First Circuit agreed, with Judge Sandra L. Lynch writing for a unanimous three-judge panel that the plaintiffs "have shown neither standing nor ripeness." With no buffer zones in place and no evidence that they will ever be established, the plaintiffs "fear of prosecution" was not enough given the lack of any precondition to enforcement.
Additionally, any claimed injuries were "too speculative for Article III purposes," the court found. Plaintiffs have not been able to show that the law impacted their expressive activities in any way, according to the First Circuit.
The plaintiffs had argued that clinics could attempt to influence their activity simply by threatening to create a buffer zone. That threat, they argued, was chilling to their speech. But there is no evidence that such a threat is "anything more than conjecture," the First said.
"If the dispute were to develop into a case or controversy fit for adjudication, it would be at some future time when the Act is causing cognizable harm -- to particular plaintiffs, at a particular clinic, and under particular circumstances," the court wrote. "Until then, a federal court could not meaningfully adjudicate" such a case.