Protesters outside a New Hampshire reproductive health clinic. Source: watchdog.org.

Last week, a federal district court judge in New Hampshire ruled that a group of protesters lacked standing to challenge a state law prohibiting them from entering within a 25-foot radius of the entrance to an abortion clinic. The law, which was similar to a Massachusetts law that the U.S. Supreme Court struck down in 2014, stated that “[n]o person shall knowingly enter or remain on a public way or sidewalk adjacent to a reproductive health care facility within a radius up to 25 feet of any portion of an entrance, exit, or driveway of a reproductive health care facility.”  The law also required clinics to “clearly demarcate” the buffer zone.

Enforcement of the law was stayed following the Supreme Court’s decision in McCullen v. Coakley, but the plaintiffs filed suit anyway, raising as-applied and facial challenges to the law.  Because the law had not been enforced, and because the clinics had not yet even demarcated the buffer zones as required under the law, the district court found that the plaintiffs’ claims were premature.  Specifically, the district court said, “the absence of any buffer zone—the creation of which is a necessary but unfulfilled condition for enforcement of the [a]ct—negates the imminence of the risk that the [a]ct will be enforced against the plaintiffs.”  The court specifically rejected the plaintiff’s argument that the law caused them to self-censor, saying, “[i]t is not, then, that the plaintiffs self-censor because they fear receiving a warning or citation for their activities.  Rather, they fear the creation of the conditions under which a warning or citation might be issued.”

Reddy v. Foster, No. 14-CV-299-JL, slip op., 2016 WL 1305141 (D.N.H. Apr. 1, 2016)

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Photo of Brian J. Connolly Brian J. Connolly

Brian Connolly represents public- and private-sector clients in matters relating to zoning, planning, development entitlements and other complex regulatory issues.  Brian’s practice encompasses a broad range of land use matters including zoning compliance, rezonings and other regulatory amendments, planned-unit developments, development agreements, private covenants and restrictions, land use and zoning litigation, initiatives and referenda associated with land use approvals, and real estate transactions.  Brian additionally specializes in the First Amendment and land use issues associated with outdoor sign and advertising regulation, and fair housing matters in local planning and zoning.