First Circuit: Anti-Abortion Protestors Can't Fight Buffer Law Before It's Enforced

By Christopher Coble, Esq. on January 19, 2017 | Last updated on March 21, 2019

Let's say that you live in New Hampshire. And let's posit that you don't like abortion. If both of those are the case, you might not be too pleased with New Hampshire's law allowing reproductive health care facilities to enforce a buffer zone banning anti-abortion advocates from protesting the clinic or its patients within 25 feet of the facility. You might be so displeased with the law that you sue the state in an effort to invalidate the law.

Here's the problem, though: the law has never been enforced. No facility in the state has created or demarcated such a buffer zone. Your First Amendment rights have not been chilled, your expressive activities have not been affected, and, thus, you have suffered no injury. Therefore your case is getting tossed out of court.

Mass. Appeal

Mary Rose Reddy and six activists might've thought they had a case after the U.S. Supreme Court struck down a similar law in Massachusetts in 2014. So they filed a complaint in federal court against the New Hampshire law later the same year, saying it infringed on their First Amendment right to protest at abortion clinics.

The difference, however, was that Massachusetts mandated a fixed buffer zone prohibiting protestors from being within a 35-foot radius of "any portion of an entrance, exit or driveway of a reproductive health care facility" during the facility's business hours. The New Hampshire law, on the other hand, merely "permits (but does not require) a reproductive health care facility to demarcate a zone extending 'up to 25 feet' onto public property adjacent to any of the facility's private entrances, exits, or driveways."

Before the Buffer Buffed

As the First Circuit noted, Reddy, et al., "filed the lawsuit before any facility had demarcated a buffer zone, and it remains true that no facility has ever created one." Without a buffer zone in existence in New Hampshire, there could be no free speech infringement, and therefore no issue for the court to decide.

Article III of the Constitution restricts the jurisdiction of federal courts to "Cases" and "Controversies." In order for someone to sue, they must demonstrate "an injury in fact," and while the risk of harm can, in some cases, be enough, some future injury is "too speculative for Article III purposes," and if no prosecution "is even close to impending," then plaintiffs have no standing to sue. Such was the case in New Hampshire, and Reddy's suit was dismissed without prejudice.

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