CONCORD, New Hampshire, January 18, 2017 (LifeSiteNews) — A controversial buffer zone law in New Hampshire upheld by federal appeals court last week now faces repeal by the state.
That puts the Alliance Defending Freedom, which launched its legal challenge against the buffer zone law two years ago, in a “wait and see” mode after a January 11 ruling dismissing its latest appeal, says ADF allied lawyer Michael Tierney.
Newly elected Republican Gov. Chris Sununu, who took office January 3, made a campaign promise in writing that he would sign a bill to repeal the buffer zone law, Tierney told LifeSiteNews.
The repeal bill “will likely have a hearing before the House in January and before the Senate in February,” he added.
This will be the third year in a row New Hampshire’s legislators will debate a repeal of Senate Bill 319, which then-Governor Maggie Hassan, a Democrat, signed the bill into law in June 2014.
The bill permits 25-foot “censorship zones”outside abortion facilities in which no person may speak, stand, or even enter on public ways and sidewalks.
ADF challenged the law on behalf of “seven wonderful named plaintiffs” who are “very brave individuals who are willing to be named plaintiffs in this suit and are willing to be out there on the sidewalk because it saves lives,” Tierney told LifeSiteNews.
But the 1st U.S. Circuit Court of Appeals in Boston on January 11 upheld a March 2016 district court decision throwing out the challenge because the plaintiffs had no jurisdiction.
The appeal court decided that the plaintiffs did not have standing for two reasons, Tierney said. “One is the private abortion clinics had not yet exercised the power that was delegated to them.”
But the ADF won a court-ordered stay of Bill 319 in July 2014, which remained in effect until August 2015, Tierney said.
Moreover, “the state of New Hampshire had obtained the promise from all private clinics that they would not post any buffer zones while the case was still pending.”
So the Circuit Court’s contention that the pro-life plaintiffs had no standing because no abortion facility has created a buffer zone was a circuitous argument, he noted.
“An unconstitutional law shouldn’t remain on the books just because abortionists haven’t taken advantage of the power the law gives them to silence speech,” Tierney observed.
The three Circuit Court judges “made no determination as to whether the New Hampshire statute would pass constitutional muster. Instead, the court left the law in place without further scrutiny unless and until an abortion business wields it.”
The abortion facilities’ “promise to the state is not something that I can necessarily rely on,” Tierney noted. “We will keep looking at our legal options.”
The Circuit Court also ruled that the plaintiffs “did not allege that they changed their behavior based on the threat of the abortion clinics having the power” to create a buffer zone, Tierney said.
The plaintiffs in Reddy v. Foster said they “were going to be out there no matter what,” Tierney told LifeSiteNews. But “there are other people in the state of New Hampshire who have been intimidated by the abortuaries from being out on the sidewalk.”
The abortion facilities “even submitted an affidavit saying in their words that the sidewalk counselors were ‘on their best behavior’ because of a threat of created a buffer zone,” he added.
The ADF’s New Hampshire challenge was based on its successful 2008 challenge to a Massachusetts buffer zone law, McCullen v. Coakley, in which the U.S. Supreme Court struck down as unconstitutional.
The Massachusetts law mandated buffer zones, whereas the New Hampshire law leaves it up to the abortion facilities to declare and enforce them.
Tierney said New Hampshire, which has a population of about 1.3 million, has two independent abortion centers and three Planned Parenthood facilities. It is not clear if one of the three PP centers does abortions.