Buffer zone repeal, 2022: House to vote week of March 15

Amidst an extremely long agenda on the New Hampshire House calendar for next week, buffer zone repeal – HB 1625 – awaits action. The Judiciary Committee on a 12-9 vote is recommending “inexpedient to legislate” (ITL). The full House in its multi-day session will vote on the bill sometime between Tuesday, March 15, and Thursday, March 17.

Identify your representatives by checking the House roster by town. Click on each name to find contact information. As them to overturn the Judiciary Committee’s ITL recommendation on HB 1625, and instead support a motion of “ought to pass” (OTP). You may find that you belong to two districts, and if that’s the case, contact all the representatives listed. If you send email, be sure your subject line is clear, since that may be the only thing a rep has time to read: “From a constituent: please vote OTP on HB 1625.”

Why HB 1625 deserves special attention

There will be other life-issue bills on the House calendar, and I will address those in a separate post. Why single out buffer zone repeal for special attention? Certainly the First Amendment implications are important, but there’s another reason. The committee’s majority report recommending ITL contains two falsehoods. Any representative supporting the ITL recommendation will be embracing them.

I cast no aspersions on Rep. Mark Paige (D-Exeter), who wrote the majority report. He may have depended on unreliable sources. All the more reason to clear up the false information.

New Hampshire’s buffer zone law threatens the right of peaceful pro-life witnesses to be present on public property outside abortion facilities. The law has never been enforced since its 2014 passage. Nevertheless, it remains a stain on our statutes.

No, the buffer zone law was NOT drafted to follow Supreme Court guidelines

From the Judiciary Committee’s minority report, which is printed in the House calendar and may be the only thing most reps read about HB 1625: “…the drafters of our current buffer law carefully crafted it after the [U.S. Supreme] Court decided McCullen, thus with particular knowledge of the constitutional limits of buffer zone laws.”

That is four-alarm nonsense.

The U.S. Supreme Court’s decision in McCullen v. Coakley, striking down the Massachusetts buffer zone law on which New Hampshire’s law was based, was handed down on June 26, 2014. (You can read the case itself and my commentary written at the time the case was decided.)

New Hampshire’s buffer zone law was introduced on December 17, 2013, passed by the House in February 2014, passed by the Senate in May 2014, and signed by then-Governor Maggie Hassan on June 10, 2014. That’s 16 days before the Supreme Court handed down McCullen.

The governor and every legislator knew perfectly well that the McCullen case was pending in the Court. They enabled the New Hampshire buffer zone law anyway.

So much for being “carefully crafted” after McCullen.

Size of zone had no bearing on the Court’s McCullen decision

The minority report goes on to parrot something that buffer zone advocates have been saying since 2014: “…New Hampshire’s current law is distinguishable from Massachusetts’ in important respects. For instance, the Massachusetts law in McCullen mandated a fixed buffer zone of 35 feet….In contrast, New Hampshire law enables a buffer zone up to 25 feet (depending on the circumstances).”

Yes, but so what? The Supreme Court did not strike down the Massachusetts law because of the size of its “buffer.” It struck down the law because the state had not used less-restrictive ways than curtailing the First Amendment to control alleged problems arising from pro-life witnesses being outside abortion facilities.

Recall that McCullen was a unanimous decision. 9-0, including Justice Ruth Bader Ginsburg. This was hardly a close call.

(Dis)honorable mention: dodging responsibility

More from the minority report: “…[The] constitutionality of our law is a question for the courts, not the legislature.”

Perhaps the writer of that line is unaware that the constitutionality of New Hampshire’s buffer zone law has already been questioned in court. Buffer zone fans themselves are responsible for the fact that the question is still open. In 2014’s Reddy v. Foster, seven pro-life plaintiffs challenged the constitutionality of New Hampshire’s buffer zone law. In 2016, Federal Court Judge Joseph Laplante dismissed the case since no abortion provider had yet posted a zone.

Now, eight years after the passage of the buffer zone law and six years after the dismissal of the Reddy case, there is still no buffer zone posted outside a New Hampshire abortion facility. That’s because the facility managers and their attorneys know that as written, the New Hampshire law is unlikely to stand up in court.

The legislature, not a judge, has the power to repeal the buffer zone law. May the legislature finally get on with the job.

HB 1625: sixth attempt to do the right thing

Since the passage of New Hampshire’s buffer zone law, there have been six repeal bills. Five have failed so far, regardless of which party was in the majority. Never assume that members of one party or the other will consistently stand up for peaceful free expression. That’s not the case, as the following bills remind us.

• 2015: HB 403. Passed House; tabled and thus killed in Senate when two Republicans joined all the Democrats in creating a 12-12 tie on an OTP motion.
• 2016: HB 1570. Same fate as 2015’s bill. It’s worth noting that the two anti-First-Amendment Republican senators no longer hold those seats.
• 2017: HB 589. Killed in House.
• 2019: HB 124. Killed in House.
• 2021: HB 430. “Miscellaneous,” says the bill’s docket, and thereby hangs a tale. The House ran out of time at its crossover deadline – the date by which all House bills must be acted upon – and some bills simply weren’t brought to the floor. One may hope that only in Covid time could such things happen.

Post header image by Ellen Kolb: Representatives Hall, New Hampshire State House