Three reasons for Governor Sununu to sign buffer zone repeal

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

Time to kill the “buffer zone” law

“Safety and balance.” That has been the cry parroted by supporters of New Hampshire’s unenforced and unenforceable buffer zone law ever since its introduction and passage in 2014. Keeping people safe means keeping people silent: that’s some screwy balance. No wonder the law has never been used.

It’s time for the Sidewalk Free Speech Act, HB 430, which will have its hearing tomorrow, February 9, at 2 p.m. It will repeal the buffer zone law, if passed.

Four times, efforts to repeal that law have failed. It’s imperative to keep trying. It’s time to erase a blot on New Hampshire’s statutes by getting rid of the buffer zone law. See the end of this post for details on how you can let legislators know that.

HB 430 ought to pass with an overwhelming majority. Anyone who values the First Amendment will support it. Abortion will be unaffected when HB 430 passes, but First Amendment rights will be reaffirmed.

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The cost of the buffer zone law, so far

A postscript to yesterday’s New Hampshire House committee vote on buffer zone repeal, HB 589: Rep. Gary Hopper (R-Weare) read aloud to his fellow committee members a communication he had received from Deputy Attorney General Ann Rice in response to a query from him about what the state has spent so far defending the buffer zone law.

He read the letter aloud in a meeting that was open to the public; he posted it today on Facebook; his correspondent is a state employee; the topic was state business. Sounds like quotable stuff to me. So here is Deputy AG Rice to Rep. Hopper, as posted by Rep. Hopper this morning:

…So far, the Department has devoted 313.75 hours of attorney time in defending the buffer zone law, which equates to $43,611.25 (313.75 hours x $139.00/hr). We do not track the time that support staff devotes to any particular case so I cannot provide a cost for that. As far as future costs, that will depend on what the plaintiffs chose to do. If they appeal the decision to the US Supreme Court, we would file an objection, which I would estimate would involve approximately 40 hours of attorney time at $139/hr, or $5560 in cost. If the US Supreme Court accepted the appeal, the Department would likely devote several hundred hours on the appeal. I am unable to better estimate the amount of time required.

The plaintiffs could opt to refrain from further litigation unless and until a buffer zone is actually being considered. At this point, I cannot estimate if or when that would occur, or the amount of time that this office would spend on the litigation.

Recall that in the Supreme Court’s McCullen v. Coakley decision overturning a Massachusetts buffer zone law, taxpayers not only covered the cost for the state to defend an ultimately unconstitutional law but were later on the hook for $1.2 million in plaintiffs’ attorneys’ fees.

I’m sure Massachusetts’ costs started small. Look where they ended up.

This Sunday, 9/20: Eleanor McCullen speaking in Dover NH

Eleanor McCullen (Alliance Defending Freedom photo)
Eleanor McCullen (Alliance Defending Freedom photo)

This is short notice, but worth sharing: Eleanor McCullen, the plaintiff in the lawsuit that invalidated Massachusetts’ buffer zone law last year, is coming to New Hampshire. She’ll speak at St. Joseph Church in Dover, New Hampshire tomorrow, Sunday, September 20 at 5 p.m. Light refreshments will be offered.

The church is on Central Avenue in Dover. If you attend, I’d love to see your photos and hear your comments. You can contact me via Facebook.

Whether or not you can go to hear Eleanor, take a look at her web site: hopehelplove.com. My thanks to Nancy Sirois for bringing this event and web site to my attention.

 

Two years ago: the first hint of a NH buffer zone

Peaceful prayer witnesses outside Concord's Feminist Health Center
Still free to be on the sidewalk, for now: peaceful witness outside a Concord abortion facility.

As a House-passed buffer zone repeal bill makes its way through the New Hampshire Senate (where its prospects are uncertain), I recall a post on this blog two years ago when buffer zones first made their way into public discussion in the Granite State.

From April 2013: PPNNE is having “conversations” about no-protest zones outside NH facilities 

The appellate court decision referred to by the PPNNE rep I quoted was of course McCullen v. Coakley, which when later appealed to the U.S. Supreme Court left the Massachusetts buffer zone law in ruins. The Burlington zone she mentioned? Gone. Ditto for one in Portland, Maine.

So much for using appellate decisions to impose censorship zones.

Today, two years later, buffer zone supporters are fighting repeal while backing away from their own handiwork – a neat trick, really. In my thirty years of keeping an eye on the State House, I have never seen anything like this.

The Sunday afternoon team at the halfway point of the Fall 2014 campaign.
A 40DFL team outside Greenland, NH’s abortion facility.

A PPNNE lobbyist at a recent Senate hearing used a Pennsylvania decision from last month to bolster her opposition to repeal. (Yes, another appellate ruling. Some lessons aren’t easily absorbed.) That case is Bruni v. Bader. The federal district court ruled that plaintiffs were unlikely to prevail on the merits and therefore their request for an injunction against a Pittsburgh buffer zone was denied.

I’m not an attorney, I haven’t yet read the text of that decision, and none of the news coverage answers this question: is there a record in Pittsburgh of police action enforcing existing pre-buffer laws relating to trespassing, loitering, harassment, or even parking violations? If there isn’t, then Bruni is a mighty slim reed for New Hampshire buffer supporters to lean on.

Looking back on the April 2013 blog post, it’s interesting to consider just how fast the New Hampshire buffer zone law moved from “conversation” to done deal. The conversations had obviously been going on long before they became public. The same is no doubt true for the current legislative “conversations” about revisiting the existing law.  Let’s hope the people who want straight repeal are equally committed to such private conversations with policymakers.