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Appeals court upholds abortion clinic buffer zones

State House Bureau

January 11. 2017 9:13PM
About 100 march in front of the Planned Parenthood Manchester Heatlh Center while reciting The Stations of the Cross in March 2013. (DAVID LANE/UNION LEADER FILE)

A federal appeals court has upheld a New Hampshire law establishing buffer zones to keep protesters at bay around abortion clinics, ruling that until a clinic actually imposes a buffer zone, it has no case to act on.

Abortion opponents in the state first appealed the 2014 law to the U.S. District Court in Concord, where it was upheld in April. They then appealed to the U.S. Court of Appeals, whose decision came down on Wednesday.

The buffer zone opponents acknowledge that no zones have been drawn and their protests have not been impeded, but want the law ruled unconstitutional on a “preemptive” basis as a violation of free speech.

The next step is the Supreme Court of the United States, which rejected a similar law in Massachusetts that had been upheld by the lower courts.

“We are currently analyzing our appeal options,” said Manchester attorney Michael Tierney, who has pressed the case on behalf of a group of New Hampshire abortion opponents with the help of a national organization, the Alliance Defending Freedom.

The state Legislature passed the law two years ago, prohibiting people from protesting within 25 feet of abortion clinics, but health centers never implemented the so-called buffer zones as the court challenges were pending.

It appears that their failure to implement the zones has played a major role in keeping the law from being overturned.

“In today’s First Circuit decision, it’s important to note there is no determination as to whether the New Hampshire statute would pass constitutional muster,” said Tierney. “We are deeply disappointed that the court has allowed a clearly unconstitutional law to remain on the books unless and until a private clinic attempts to use the power delegated to them to silence free speech.”

The ruling affects clinics in Greenland, Keene, Manchester and Concord. Judges at both the U.S. District Court and Court of Appeals left open the possibility that the law could be challenged on its merits, if any of the clinics ever decide to take advantage of it.

Seven anti-abortion protesters in New Hampshire, with Catholic nun Mary Rose Reddy as the lead plaintiff, filed suit in July of 2014 to block the law from taking effect, with Attorney General Joseph Foster named as lead defendant.

The case proceeded through the lower courts against the backdrop of the Massachusetts case that went all the way to the U.S. Supreme Court. In June 2014, the high court unanimously struck down a Bay State law establishing a 35-foot buffer zone around abortion facilities in a case known as “McCullen.”

The Appeals Court noted differences in the Massachusetts and New Hampshire situations, and declined to strike down the New Hampshire law on the basis of the McCullen ruling.

Appeals Court Judge Sandra Lynch, writing for the majority, called the appeal “speculative” and “premature.”

“The plaintiffs have not alleged that the law has meaningfully altered their expressive activities, nor that it has objectively chilled their exercise of First Amendment rights. Because no facility in New Hampshire has yet demarcated a zone, and there is no present evidence that a zone will ever be demarcated, the plaintiffs’ alleged injury is too speculative,” the ruling states.

“Simply put, there literally is no prior restraint here imposed; there is only a delegation of the power to impose a restriction on speech, via demarcation of a zone, at some point in the future.”

Planned Parenthood and other supporters of the New Hampshire buffer zone law have stated previously that the Granite State law can withstand judicial scrutiny because, unlike the Massachusetts law, it allows for much greater flexibility and local decision-making.

“New Hampshire’s law is distinguishable from the Massachusetts law that was struck down by the U.S, Supreme Court,” according to a Planned Parenthood announcement after the April 1 ruling. “The Massachusetts law established a mandatory buffer of 35-feet and treated all facilities in the state in an identical fashion, whereas New Hampshire’s law allows for a discretionary buffer, and only enables a patient safety zone as the facts and circumstances dictate.”

The Appeals Court ruling quotes a vice president from Planned Parenthood of Northern New England, who testified in March 2015 before a New Hampshire House Committee that “in the spirit of the McCullen decision, (she) would not even suggest .... post(ing) a zone where there is not .... a history of documented attempts to address the balancing of rights in less restrictive means before considering the option of posting.”

Tierney said it’s important that the case was dismissed without prejudice, which means it can be refiled if the facts underpinning the decision ever change, through imposition of a buffer zone or some related restriction on protesters.

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