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NH's abortion clinic buffer zone law in legal limbo

New Hampshire Union Leader

July 25. 2014 8:02PM

CONCORD — A federal judge has put on hold all legal action concerning New Hampshire’s abortion clinic buffer zone law, but has not ruled the law unconstitutional.
State and county officials, however, have been ordered not to enforce it.
Sister Mary Rose Reddy of the Daughters of Mary, Mother of Healing Love , who operate the St. Charles Children’s Home in Rochester, and six other plaintiffs, filed suit to have the law ruled unconstitutional. They argue it violates their freedom of speechrights.
The Access to Health Care Facilities Act, scheduled to go into effect on July 10, allowed health facilities that offer abortions to post signs creating a 25-foot buffer zone between clinic clients and protesters.
U.S. District Court Judge Joseph N. Laplante issued an “Order on Agreed-Upon Stay” on Wednesday that says state and county officials are not to enforce the law against the plaintiffs, and any defendant who receives notice that a reproductive health clinic intends to post a buffer zone is to immediately notify plaintiffs’ lawyers.
The court “will then schedule a hearing on the plaintiffs’ motion for preliminary injunction forthwith.”
Legal arguments
It was an “unconstitutional law that can’t be enforced,” said Michael J. Tierney, an attorney representing Sister Mary Rose, the lead plaintiff.
Senior Assistant Attorney General Nancy J. Smith said there is no way for the court to determine if the law is constitutional since it never was implemented.
The state maintains the law is different from Massachusetts’ law, which was ruled unconsitutional in June by the U.S. Supreme Court, and that Granite State’s law would survive a constitutional challenge.
Friday’s hearing on a preliminary injunction was cancelled.
The court dissolved the temporary restraining order it had issued on July 9.
The Alliance Defending Freedom, which on its website said it was a legal ministry founded in 1994 to bring together thousands of Christian attorneys and like-minded organizations to advocate for the right of people to freely live out their faith in America and around the world, represented some of the plaintiffs in the case.
The alliance issued a news release about the case, titling it “Court order freezes NH censorship zone law.”
ADF attorneys, along with other lawyers, filed a lawsuit in 2008 that resulted in the U.S. Supreme Court unanimously striking down the Massachusetts’ buffer zone law in the the McCullen vs. Coakley case.
The ADF attorneys maintain the New Hampshire law created 25-foot censorship zones in which no person may speak, stand, or even enter on public ways and sidewalks outside abortion facilities.
“The order prohibits enforcement of the N.H. law until the court decides whether to issue an injunction against it, which the court says it will consider if such censorship zones are drawn,” according to ADF’s prepared statement. “Because no such zones have been drawn yet, the law is on hold indefinitely.”
The state, in pleadings filed by lead attorney Smith, maintained the law is constitutional and points out it does not create mandatory 25-foot buffer zones.
The state argued that until a buffer zone is created – affidavits filed by the N.H. clinic operators say they had no intention of implementing them at this time – it cannot be known how the law would be applied to the plaintiffs.
Smith also argued the plaintiffs do not have standing to bring a lawsuit and, if they do, the law cannot be found unconstitutional because it hasn’t been implemented.
Laplante, in speaking with the attorneys concerning the agreed-upon stay, noted that the state attorney general filed objections to the plaintiffs’ motion for an injunction, as well as motions seeking to dismiss or stay the proceedings. In the filings, the state took the position that the law’s enforcement mechanisms would not be applied because there were no buffer zones signs posted.

The law says the enforcement mechanism – a written warning, then a citation punishable by a $100 minimum fine and then an action for injunctive relief filed by the Attorney General or county attorney – shall not apply unless a sign is posted concerning the buffer zone.

The attorney general contends that since no signs are posted, the plaintiffs face no threat of sanctions under the law. The absence of the signs means the “patient safety zone” created in the act has yet to take effect since “an individual cannot be prohibited from entering a specific space until its bounds have been established and demarcated.”
The plaintiffs dispute that conclusion, but agree that without the postings the enforcement mechanisms cannot be imposed.

Smith explained that, generally, when a court issues a “stay,” the stay is not permanent. At some point, she said, the case is usually dismissed.
The judge said that within 60 days of his order, the parties are to file a joint status report apprising him of any legislative, executive, judicial or factual developments in the case.

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