Buffer zone repeal tabled after tie vote

June 2014: Peaceful prayer witnesses outside Concord's Feminist Health Center, within what might become the "buffer"
Standing on the sidewalk outside Concord’s Feminist Health Center: soon to be a “violation”?

An attempt to repeal New Hampshire’s buffer zone law failed on a 12-12 vote Thursday in the New Hampshire Senate. Republicans Jerry Little of Weare and Nancy Stiles of Hampton joined the Senate’s ten Democrats in opposing the repeal measure, HB 403. Immediately after the vote, Senators tabled the bill on a voice vote. No amendments were formally proposed.

House Bill 403 would repeal the law passed last year putting public areas within up to 25 feet abortion facilities off-limits at the discretion of facility managers. The law has been under court injunction since last July, shortly after it was signed by Governor Maggie Hassan. Seven New Hampshire residents have filed suit to overturn the law. Their case, Reddy v. Foster, has been stayed repeatedly pending the outcome of HB 403.

The surprise: no amendments

Despite speculation among spectators before the vote, no buffer zone supporter tried a repeal-and-replace tactic. The only allusion to such a possibility was made by Senator Little, who mentioned in his floor speech that he was surprised not to find support among buffer zone supporters for the kind of “bubble zone” law in effect in some other states. Bubble zones, while restrictive, typically do not put public areas completely off limits to First Amendment activity.

The Vote

Voting to pass HB 403 and repeal the buffer zone law: Senators Jeanie Forrester of Meredith (district 2), Jeb Bradley of Wolfeboro (dist. 3), Sam Cataldo of Farmington (dist. 6; co-sponsor of bill)), Andy Sanborn of Bedford (dist. 9), Gary Daniels of Milford (dist. 11; co-sponsor), Kevin Avard of Nashua (dist. 12; co-sponsor), Sharon Carson of Londonderry (dist. 14; co-sponsor), David Boutin of Hooksett (dist. 16), John Reagan of Deerfield (dist. 17), Regina Birdsell of Hampstead (dist. 19; co-sponsor), Chuck Morse of Salem (dist. 22), and Russell Prescott of Kingston (dist. 23). Bradley was one of the sponsors of the original buffer zone law, but he supported repeal today.

Voting to reject HB 403 and keep the buffer zone (and its litigation) in place: Senators Jeff Woodburn of Dalton (district 1), David Watters of Dover (dist. 4), David Pierce of Lebanon (dist. 5), Andrew Hosmer of Laconia (dist. 7), Jerry Little of Weare (dist. 8), Molly Kelly of Keene (dist. 10), Bette Lasky of Nashua (dist. 13), Dan Feltes of Concord (dist. 15), Donna Soucy of Manchester (dist. 18), Lou D’Allesandro of Manchester (dist. 20), Martha Fuller Clark of Portsmouth (dist. 21), and Nancy Stiles of Hampton (dist. 24).

The subsequent motion to table came from Jeb Bradley.

Notes on the debate

Carson moves Ought to Pass; Soucy counters with her favorite talking points. Judiciary Committee chair Sharon Carson urged her colleagues to adopt the committee’s “ought to pass” recommendation. Noting that the New Hampshire law is modeled on a Massachusetts law thrown out by the U.S. Supreme Court, she said, “What we have is a law on our books that is unconstitutional.”

Donna Soucy, who was the chief sponsor of the buffer zone law, was first to counter Carson’s recommendation. She trotted out her oft-repeated assertion that the Massachusetts and New Hampshire laws are different because of the size of the respective zones. She also claimed that New Hampshire’s law is flexible (“up to 25 feet”). “This is about access to basic health care.” She said she had introduced the law in response to people being “yelled at and obstructed” as they tried to enter abortion facilities.

Senator Soucy neglected to mention what has been brought out over and over again at hearings on the original law and the repeal bill: there are no police records to support claims of ongoing harassment or lawbreaking at any abortion facility in the state; the New Hampshire zone is “flexible” because, if enforced, it would give abortion providers sole control over posting, placement and enforcement hours (input by public authorities would be strictly advisory); and the Supreme Court threw out the Massachusetts law because the state had failed to try less restrictive measures to control activity outside abortion facilities.

The Republicans who created the tie: Senator Stiles argued against repeal, claiming that a Pittsburgh buffer zone was recently upheld in federal court (not at the Supreme Court level.) She did not enlighten her listeners with the reasoning behind that court’s decision or how the Pittsburgh and Massachusetts laws differ. She also said New Hampshire’s buffer zone law is “enabling, not mandatory.” Yup – it enables abortion providers, essentially private entities, to determine who may occupy public spaces near abortion facilities.

Senator Jerry Little wasn’t around when the buffer zone law was passed, but as district 8’s new senator he stood by the law co-sponsored by his predecessor Bob Odell. “It won’t come as a surprise that I’m pro-choice in my beliefs,” said Little today, adding that he thought abortion should be “legal, rare and safe.” He thinks the buffer zone law, unenforced though it may be, somehow contributes to safety. No word from him on how existing laws on trespassing, disorderly conduct and the like might contribute to safety.

Avard draws the most fire: All those early speakers, had they but known it, were merely setting the table for Senator Kevin Avard. His speech in favor of repeal was if anything even shorter than Carson’s. “I believe in freedom of speech and equal protection – the First and Fourteenth Amendments.” He believes the buffer zone law violates both of those constitutional provisions. He was then questioned at length by four colleagues who are ardent defenders of the buffer zone. Senators Feltes, Woodburn, Lasky and Hosmer went in order, with the questions becoming more sharply pitched each time. At no point did Avard lose his cool or his focus.

Feltes to Avard: “This is women’s health week.” Why do you think repeal of this safety zone is appropriate now? Avard: “This is about speech.” Feltes: “Do you support any buffer?” Avard: “I support the First and Fourteenth Amendments.”

Avard pointed out how legislation on a labor matter a few years back sparked a noisy crowd of citizens opposed to the bill. (I was there. I remember it well.) He said legislators supporting the bill were followed through the State House halls and onto surrounding sidewalks by people shouting at them, and “we managed without any buffer zone” to restrict the speech or the presence of the irate citizens.

Woodburn politely asked Avard a question: do you mean women going in for health care should get the same treatment as politicians? Personally, I was irked at that – I smelled a whiff of women being infantilized – but Avard didn’t go down that road. He replied with a question of his own for Woodburn (which the District 1 senator treated as rhetorical): “Is it intimidating if people [outside abortion facilities] are just praying?”

Hosmer was willing to take up that one. “Proximity of prayer really has no effect on the power of the prayer” – so why should the size of the buffer zone matter? Avard would not be pulled off his message – “First and Fourteenth Amendments.” Hosmer brought up the buffer zone around military funerals (also cited by some of his colleagues), asking Avard if he supported that. Avard replied, “I don’t know about that. The bottom line is I believe in freedom speech and equal protection under law.”

Yet to come

If the parties to Reddy v. Foster were waiting to see what legislators would do with the repeal bill, they can stop waiting.

The buffer zone is still on the books, and barring a change of heart from one senator, the repeal bill is dead. It could be taken up again anytime before the Senate adjourns in June, but I saw no signs of a wavering vote at Wednesday’s session. No one will move to take the bill off the table unless one side or the other lines up a thirteenth vote.

My day ends with questions: will abortion providers go ahead and post signs delineating buffer zones? Will Governor Hassan and Attorney General Foster give the go-ahead to county attorneys to proceed with enforcement? Will the federal judge hearing the case schedule a hearing soon? Will laws against trespassing, disorderly conduct, criminal threatening, and even parking violations ever be enforced in an attempt to control the problems cited by buffer zone supporters? Will buffer zone fans be content to have a law on the books that remains unenforced?

I’m sure the answer to the last one is a firm no. As to the rest, I have no idea.

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