After protracted debate, including attempts to attach two non-germane amendments, the New Hampshire Senate has passed the buffer zone repeal bill, HB 1625. The vote was 12-11, in spite of Governor Chris Sununu’s veto threat. Twelve of 14 Republicans voted to pass the bill. While the bill’s docket hasn’t yet been updated with the official roll call, news reports indicate that Sen. Hennessey (R-Littleton) voted with the chamber’s ten Democrats, and Sen. Reagan (R-Deerfield) was absent.
The Governor has not detailed his reasons for opposing buffer zone repeal. Perhaps it’s tied up with a wish to look more “pro-choice,” a label he wears with pride. In any case, his determination to veto the bill flies in the face of a written commitment he made in 2016. (More about that later.)
He can still do the right thing and sign HB 1625. He has good reasons to do so. You can call his office at (603) 271-2121 with a quick message, or email him with longer comments.
The Supreme Court’s McCullen decision
One would think that the Governor’s legal team might have read McCullen v. Coakley, but I am beginning to have my doubts.
There is such a thing as a “constitutional” buffer zone law, in the eyes of U.S. Courts. New Hampshire’s law isn’t one of them. It is modeled on the Massachusetts buffer zone law that was thrown out by a unanimous U.S. Supreme Court – yes, including Justice Ruth Bader Ginsburg – back in 2014’s McCullen case, days after the New Hampshire law was signed by then-Governor Hassan.
The Massachusetts law was thrown out on narrow grounds, which happen to apply to our situation in New Hampshire. In an effort to accommodate abortion providers who didn’t want pro-life witnesses outside their facilities, Massachusetts had failed to enforce more targeted and less restrictive laws before going after the pro-lifers’ First Amendment free-speech rights. Here’s Chief Justice Roberts, writing for the Court: “Respondents assert undeniably significant interests in maintaining public safety on those same streets and sidewalks, as well as in preserving access to adjacent healthcare facilities. But here the Commonwealth has pursued those interests by the extreme step of closing a substantial portion of a traditional public forum to all speakers. It has done so without seriously addressing the problem through alternatives that leave the forum open for its time-honored purposes. The Commonwealth may not do that consistent with the First Amendment.“
“Without seriously addressing the problem through alternatives” is exactly where New Hampshire stands. It’s exactly why New Hampshire abortion providers have never yet posted a buffer zone. There is no record with any law enforcement agency of repeated arrests, never mind convictions, of peaceful pro-life witnesses outside abortion facilities. It would require such a record to justify infringement of First Amendment rights.
Again, Chief Justice Roberts: “To meet the requirement of narrow tailoring, the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier. A painted line on the sidewalk is easy to enforce, but the prime objective of the First Amendment is not efficiency.”
Whether using a painted line as in Massachusetts or a printed sign as prescribed in New Hampshire’s law, McCullen applies.
The cost of litigation
After Massachusetts lost the McCullen case, the pro-life plaintiffs quite reasonably sought to recover their legal fees. A settlement agreement reached six months after the Supreme Court decision resulted in Massachusetts having to pay up, to the tune of $1.24 million. That’s on top of whatever the Commonwealth spent in the years-long effort to win its case.
Governor Sununu is steward of the New Hampshire treasury. I doubt defending a McCullen-style law is what he means to do with your tax dollars. It would be much wiser to get the McCullen-style law out of New Hampshire statutes.
Sununu’s 2016 commitment to support buffer zone repeal
Perhaps even more persuasive than the preceding two reasons is the third one, which speaks to the Governor’s character.
When Chris Sununu first ran for governor in 2016, pro-life voters were concerned. Like the Democrat on the ballot, he called himself “pro-choice.” After hearing from concerned Republicans, the message went out a few days before the November election that there were a few policies he could support. One of them was repeal of the buffer zone law. He put that in writing.
I provided his statement in a post in November 2016: A concerned Republican and Sununu’s reply
In the same message, he said he could support a late-term abortion ban. He did so when he signed last year’s budget, which contained the Fetal Life Protection Act – and now he intends to walk that back, by announcing his intention to sign HB 1609 adding a post-24-week eugenic exception to FLPA.
It’s possible that as a popular governor with a lot of political capital to spend, he has decided to repudiate his 2016 statement. Maybe his political calculus does not take pro-lifers into account. Maybe he thinks we’re politically negligible.
Are you willing to prove him wrong?
Remember: (603) 271-2121. Second floor of the State House, if you want to deliver a written message to the reception staff. Use that “share your opinion” page on his website. Get some friends together and write postcards, addressed to the Governor at 107 North State Street, Concord NH, 03301. Cite one reason for him to sign HB 1625, or cite all three, or simply say “please sign buffer zone repeal.”
Governor Sununu is listening to abortion advocates. He needs to be listening to his own better nature – the one he gave us a glimpse of in 2016.
post header photo: Scott Graham/Unsplash