NH buffer zone repeal bill has zone backers looking for cover

The yet-unenforced New Hampshire buffer zone law rammed through the legislature by abortion advocates last year has become politically and legally toxic – so much so that its biggest boosters are asking legislators to fix the mess they made last year. Senator Donna Soucy and Planned Parenthood lobbyist Jennifer Frizzell testified before the House Judiciary Committee last week, arguing that any flaws in the law can be fixed.

The fifteen co-sponsors of House Bill 403 have a better idea: repeal the law altogether.

Supporters of the repeal bill filled the Judiciary Committee’s hearing room a few days ago, and so many of them wanted to testify that the morning’s hearing was carried over to the afternoon. Chief sponsor Kathy Souza of Manchester called the buffer law law “an affront to our state and our state’s motto and our Constitution,”  and she reminded the committee that with the Reddy v. Foster lawsuit pending, “it could cost the state a lot of money quite unnecessarily.”


Still no police logs to back up claims that a buffer is needed

Souza (not to be confused with Sen. Soucy) of Manchester arrived at the hearing with an email she had received within the hour from the Manchester police department, reporting the most recent logs available on police calls to the Manchester Planned Parenthood facility. As was the case with earlier logs submitted into testimony when the buffer zone was moving towards passage, these logs showed no evidence of violence or even disruptive behavior resulting in an arrest at that location.

Souza read aloud from the logs she had just received about calls to 24 Pennacook Street: “alarm activation, forgery, sex assault, parking complaints, and an accident. Nothing to do with protesters.”

Frizzell explained the lack of police reports by saying “Moving forward with a complaint requires giving up one’s own privacy … Clearly, we had many patients that wanted to be part of contributing to a solution who weren’t ready to press charges with law enforcement.”

The Supreme Court & the Massachusetts case

As for the Supreme Court’s unanimous decision throwing out the Massachusetts buffer zone law on which the New Hampshire law is based, neither Soucy nor Frizzell find it persuasive. Soucy, chief sponsor of the buffer zone bill, said that when she introduced what became the law, she was “very mindful of the fact that there was a U.S. Supreme Court appeal [McCullen v. Coakley] pending regarding the Massachusetts law.”

She denies that the New Hampshire law is similar enough to the unconstitutional Massachusetts law, specifying two differences: the New Hampshire law has an “up to 25-foot” zone, where Massachusetts had a 35-foot buffer; and New Hampshire’s law has a “posting” requirement whereby the law isn’t enforced in the absence of buffer-zone signs around abortion facilities.

Soucy, an attorney, omitted from her testimony the principal reason the Court gave for striking down the Massachusetts law. It had nothing to do with signs or the size of the zone. The Massachusetts law could not survive because it impermissibly infringed on First Amendment rights. From Justice Roberts’s decision in McCullen: “…here the Commonwealth has pursued those interests [of balancing the rights of patients and demonstrators] 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.”

Which brings us back to the police logs in Manchester and all the other communities hosting New Hampshire abortion providers: within the past few years, there is no police evidence of a pattern of threats or intimidation at any New Hampshire facility. In order for the New Hampshire buffer zone law to be constitutional in accordance with Justice Roberts’s decision, there must first be a documented problem with demonstrators at an abortion facility. Then, before the draconian step of nullifying the First Amendment in the vicinity of an abortion facility, existing less-drastic laws must be used first: laws against disorderly conduct, for example.

“Flies in the face of the First Amendment”

“This [law] not only flies in the face of the First Amendment; it also violates our [New Hampshire] constitution,” Souza testified. “Our constitution takes very seriously our First Amendment rights. We’re the Live Free or Die state. I think it’s a blight on our legislative landscape to have a bill that was in essence ruled a violation of our First Amendment rights. If we think we’re Live Free or Die, we should make it a priority to get this law off our books.”

Rep. Al Baldasaro of Londonderry agreed, calling repeal “a no-brainer. When somebody is out there at a rally, not assaulting anyone, not causing damage, not being out in the street so they’re breaking the laws, I think we owe it to [them] not [to] shut down anyone’s right to protest in those areas, whether you support abortions or not.”

Rep. Dan Itse of Fremont testified in favor of repeal, and he faced questioning from committee member Rep. Paul Berch, who asked “Do you support people being intimidated when they are performing activities that are legal?” “Of course not,” replied Itse. “And I would suspect we have laws against disturbing the public peace. If our laws regarding disturbing the public peace are not adequate, I suggest we make them adequate.”

Rep. JR Hoell of Dunbarton brought up a point not addressed by other speakers: “We violated our [state] constitution on quorum rules” on a tabling motion for the buffer zone bill before it eventually passed. “This bill should never have become law.” Hoell said that the quorum problem, coupled with the lawsuit against the buffer zone, makes repeal “a slam-dunk.”

“I didn’t think that you would even consider not repealing this bill,” said Rep. Jeanine Notter of Merrimack to the committee, “after hearing about the lawsuit and how much it could cost the state – just please do the right thing and just repeal this buffer zone.”

Buffer zone sponsor: “I’d ask you to work with us”

All the speakers at the hearing, pro- and anti-repeal, acknowledged the current stay that is preventing enforcement of New Hampshire’s buffer zone law. Repeal proponents consider this a good reason for getting rid of the law, while those opposing repeal are now suggesting that the delay might allow for tinkering with the law.

Frizzell to the committee: “It does seem to me and to Planned Parenthood that the law on the books as it sits under injunction is not doing any good addressing the concerns that we had where we brought forward. So in your deliberation of whether to let it stand, or whether to repeal it, I would be interested in talking to the committee about some more pragmatic ways that New Hampshire’s law could be enforced.” Anything but repeal, she seemed to be saying.

Soucy concurred. “Repeal of this law in and of itself is a mistake. To the extent there is concern over a particular aspect of the bill, I’d ask you to work with those who continue to face threatening and intimidation. The problem that I brought before this legislature last year is an ongoing problem. It’s one that persists.”

Committee action expected within a week

Committee chairman Robert Rowe expects a committee vote on the bill before the House break the last week of February. Repeal opponents are likely to continue lobbying for adjustments to the existing law. What they didn’t lobby for at the hearing: leaving the law alone. We have the seven plaintiffs in Reddy v. Foster to thank for that.

Massachusetts to pay $1.2 million to buffer zone attorneys

The state of Massachusetts must pay the attorneys for plaintiffs in its buffer zone case $1.24 million, under terms of a settlement agreement. This has implications for New Hampshire’s buffer zone law, modeled on the Massachusetts law struck down in June by the U.S. Supreme Court.

Will New Hampshire officials have to hit up the taxpayers for a similar settlement, or will they do the sensible thing and drop the case? Will the New Hampshire House and Senate make that decision for us by repealing the buffer zone law?

A reliable source has given me the details of the settlement agreement, which was approved by the U.S. District Court for the District of Massachusetts on December 15, 2014.  The State of Massachusetts has 90 days to make the payments totaling $1.24 million.

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

Eleanor McCullen and six other plaintiffs filed suit in 2008 challenging the constitutionality of Massachusetts’ buffer zone law on First Amendment grounds. In June 2014, the U.S. Supreme Court agreed that a law restricting First Amendment rights outside abortion facilities could not be upheld before the state first enforced less drastic remedies. This parallels the New Hampshire law, which was signed by Governor Maggie Hassan after the Supreme Court ruled in the McCullen case. Operators of New Hampshire abortion facilities were unable to produce any recent police records about peaceful pro-life witnesses violating any law by praying outside facilities.

Seven Massachusetts plaintiffs prevailed, and now Massachusetts reportedly owes their attorneys more than a million dollars. New Hampshire’s law is being challenged by seven plaintiffs, too. How much will our state owe their attorneys before giving up on the law?

The New Hampshire case, Reddy v. Foster, has been in a strange place ever since Sister Mary Rose Reddy and her fellow plaintiffs brought suit. A federal district court judge issued a temporary restraining order against enforcement of the law. Attorney General Joseph Foster, who is supposed to defend the law, agreed not to enforce it for now. Abortion providers agreed not to put up “buffer zone” signs at their facilities. The state holds that since the law isn’t being enforced, the plaintiffs have no case. The judge has yet to rule on that issue.

Perhaps the judge is waiting for January, when the legislature will have a buffer zone repeal bill to consider, filed by Rep. Kathy Souza (R-Manchester). Once the law is repealed, the case will go away.

Instead of being strictly a “social” issue, the buffer zone law is now a fiscal concern. Let’s see how many New Hampshire legislators want to pay – or rather, make YOU pay – to keep the law in place.

Right decision, wrong reason (but let’s take it for now)

U.S. Supreme Court. Wikipedia Commons photo, public domain.
U.S. Supreme Court. Wikipedia Commons photo, public domain.

New Hampshire’s buffer zone law is based on a Massachusetts law that has just been ruled unconstitutional. So much for one sorry attempt at “bipartisanship.” It seems Democrats and Republicans are equally capable of dismissing the Bill of Rights.

In a unanimous decision, the U.S. Supreme Court has ruled the Massachusetts buffer zone law unconstitutional. A sweeping ruling? No. A good day? Definitely. A fatal blow to New Hampshire’s ill-conceived copycat law? We’ll see.

What does this mean for the New Hampshire law?

Could the legislature repeal the law? Sure. It wouldn’t need this decision to do it, though. Just file a repeal bill for next January.

Does this case automatically invalidate the New Hampshire law? No. However, anyone seeking an injunction against enforcement now has a great tool. Any enforcement that does take place – and remember, signs have to go up outside an abortion facility before the New Hampshire buffer zone law can be enforced – will be subject to legal challenge. How much money does the cash-strapped State of New Hampshire want to spend defending a law that is obviously constitutionally defective?

The Court remanded the Massachusetts case back to a lower court, which could uphold certain portions of the law. New Hampshire’s abortion partisans will undoubtedly watch closely, and will try to retain any portion of the law not explicitly rejected as unconstitutional.

What did the Court get right?

It recognized that the First Amendment is alive and well, even within 35 feet of abortion facilities. Public sidewalks, traditionally a public forum, can’t be treated as though they’re the private property of abortion providers. The affirmation was restrained (about which more below), but it was an affirmation nonetheless. From Chief Justice Roberts’s opinion:

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.

Alternatives: now, there’s a thought. There was no attempt outside abortion facilities to enforce existing laws before the New Hampshire buffer zone was passed. A private entity – Planned Parenthood of Northern New England – testified that it had 60 complaints from clients about activities outside its Manchester facility. The Manchester police department wasn’t involved. No citations or arrests were made for disorderly conduct, trespassing, or even illegal parking in conjunction with pro-life activity outside abortion facilities.

The Court found that the Massachusetts law was not “narrowly-tailored.” New Hampshire’s law is, according to Governor Hassan. Given that the sponsors of the New Hampshire law looked to the Massachusetts law for guidance, I’m skeptical of the Governor’s claim. Justice Roberts again:

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. 

And one more poke in the eye to all the people who said a buffer zone was essential:

If Common­wealth officials can compile an extensive record of obstruc­tion and harassment to support their preferred legislation, we do not see why they cannot do the same to support injunctions and prosecutions against those who might deliberately flout the law. 

In other words, enforce your existing laws before stomping on the First Amendment.

How does the decision fall short?

The decision says that buffer zones are not about content-based speech, which would have required the State to meet a much higher standard before restricting speech.

Come on, you black-robed sages. Seriously? Chief Justice Roberts wrote that the Massachusetts law is not directed at speech opposing abortion, and therefore is not subject to “strict scrutiny.” It’s enforceable around abortion facilities, but it’s not about abortion-related speech, says Roberts. Let that sink in for awhile. Three Justices looked at the Chief’s finding and decided they had to respond.

Justices Scalia, Thomas and Kennedy said in effect “right decision, wrong reason.” Scalia wrote for all three of them in his usual brisk and blunt tone. He was highly critical of “abortion-speech jurisprudence,” a special class of free speech that in his judgment his colleagues seem to think abortion opponents deserve. “Today’s opinion carries forward this Court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents.” By declining to impose the strict-scrutiny standard, writes Scalia,

…the majority [of the Court] can preserve the ability of jurisdictions across the country to restrict antiabortion speech without fear of rigorous constitutional review….Would the Court exempt from strict scru­tiny a law banning access to the streets and sidewalks surrounding the site of the Republican National Conven­tion? Or those used annually to commemorate the 1965 Selma-to-Montgomery civil rights marches? Or those outside the Internal Revenue Service? Surely not.


Scalia also took a look at the Planned Parenthood League of Massachusetts web site (as recently as two days ago) to check out the help-wanted ad for “clinic escorts.” He found that no threat to public safety was mentioned, and of course public safety is what buffer-zone advocates tout as one reason such laws are needed. Writing for Justices Thomas and Kennedy as well, Scalia suggests that public safety is being used to mask barriers to free speech.

The Web site for the Planned Parenthood League of Massachusetts (which operates the three abortion facilities where petitioners attempt to counsel women), urges readers to “Become a Clinic Escort Volunteer” in order to “provide a safe space for patients by escorting them through protestors to the health center.”…The dangers that the Web site attributes to “protestors” are related entirely to speech, not to safety or access. “Protestors,” it reports, “hold signs, try to speak to patients entering the building, and distribute literature that can be misleading.”… The “safe space” provided by escorts is protection from that speech. … I concur only in the judgment that the statute is unconstitutional under the First Amendment.

This ain’t over

The Massachusetts law will have to be re-drawn in order to pass constitutional muster. So will New Hampshire’s, it seems to me. It is not true, however, that the Supreme Court today struck down all abortion-facility buffer zones for good. There was no finding that trying to squelch pro-life witnesses is unconstitutional per se, only that doing so with a new law without first enforcing old ones is a no-no.

These things take time. The Massachusetts case began in 2008, if I’m not mistaken. Any chance for the Supreme Court to elevate buffer-zone laws to a strict-scrutiny standard is years away. Every case has to start somewhere, though. One state (or city) at a time, abortion advocates will try to silence pro-life witness. One arrest or citation at a time, pro-life witnesses can challenge the law. The Court will probably deny a hearing to several challenges before taking up abortion-related buffer zones again. An expanded ruling could be a decade away.

That’s today’s reminder that it matters who holds the Presidency and nominates Justices to the Court.

Spare a moment today to offer a prayer of thanksgiving for people like Eleanor McCullen, the plaintiff of record in the Massachusetts case, and the team of lawyers who helped her get to the Supreme Court. This was a battle worth fighting.

Subscribe to Leaven for the Loaf for ongoing coverage of New Hampshire’s buffer zone law.






Support for rushed abortions drops; Roe fan calls for free speech

Two particular items in the news feed this morning warrant attention, no matter where you are post-Roe.

Drive-through abortions losing public support

Among the abortion regulations gaining traction in various states is a 24-hour waiting period between the time a woman gets medical counseling for an abortion and the time the abortion is induced.

I heard operators of three of New Hampshire’s freestanding abortion facilities testify last year that by the time a woman arrives at an abortion facility – oops, a “full-spectrum reproductive health facility” – she already knows what she wants. Ergo, why waste time on barriers like finding out about who’s going to do the procedure, complication rates, and fetal development – not to mention pregnancy support options available in the community?

I call a one-stop pregnancy confirmation, counseling, and abortion process a drive-through abortion. Great for abortion facility revenue, lousy for women’s health. Evidently, I’m not the only one coming around to that view.

A recent Rasmussen poll of 1000 likely voters found that 49% favored some kind of waiting period before an abortion. 39% were opposed, while 11% were undecided. Rasmussen reports that support for a waiting period is at its highest level in two years.

Roe supporter criticizes “buffer zones” as case comes to Supreme Court

In today’s Wall Street Journal, a self-described supporter of Roe v. Wade strongly encourages the U.S. Supreme Court to strike down Massachusetts’s 35-foot “buffer” against peaceful pro-life witness outside abortion facilities. Read Floyd Abrams’s “Abortion Rights as a Free-Speech Flashpoint.”

On January 15, the Court will hear oral arguments in McCullen v. Coakley, the challenge to the buffer zone. (Note that the Massachusetts attorney general defending the law, Martha Coakley, has run unsuccessfully for U.S. Senate and may yet have her eye on a federal-level office.) In his article, Abrams draws a distinction between laws against physical obstruction and intimidation of people entering an abortion facility and laws that ban all peaceful pro-life advocacy outside those facilities. He says that the former are “narrowly drafted and do not raise any plausible First Amendment objections,” while the latter are an example of “overbreadth.”

His remarks on how the views of the ACLU have changed regarding free speech in this context are interesting, and enormously revealing of the policy priorities of the group. “The old ACLU got it right,” says Abrams.

New Hampshire legislators will consider a buffer zone bill during the session that begins this week. That’s premature at best, with the Massachusetts case still pending.

Supreme Court to consider First Amendment rights of pro-life demonstrators

The U.S. Supreme Court is back in session, and among the cases it will decide by next summer is one from Massachusetts challenging that state’s 35-foot no-protest zone around abortion facilities [McCullen v. Coakley]. The plaintiffs are seven pro-lifers who regularly do sidewalk counseling outside abortion facilities in Boston, Worcester, and Springfield.

The pending case was a factor in the decision by the Concord, NH City Council not to follow up on a petition to impose a 35-foot zone around the Feminist Health Center. When that petition was in the news, I went to Concord to measure what a 35-foot zone would look like there (see Thirty-Five Feet in Theory and Practice). I still wonder if the Concord Chamber of Commerce realizes that a 35-foot “buffer” would put pro-lifers on its doorstep instead of the FHC’s. If the Supreme Court upholds the Massachusetts law, you can expect to see a buffer zone imposed by the city, if not by the state.

The challenged law applies to “reproductive health facilities” excluding hospitals. Violators are subject to fines and jail time, becoming more severe with repeat offenses. Mark L. Rienzi, attorney for the plaintiffs, told Boston.com, “The same rules have to apply to all speakers. The government cannot put peaceful pro-life speakers in jail, but give Planned Parenthood free rein on the same sidewalk.” It seems that employees of the abortion providers, who are not subject to the law, have been known to stand in front of the facilities and interact with clients in a manner to drown out the pro-lifers 35 feet away.

I saw a tweet the other day from Planned Parenthood of Northern New England, calling on supporters to show up in Portland to promote a “patient safety zone” there. That’s yet another euphemism for “First-Amendment-free zone.”

The Court last addressed no-protest zones in 2000 in the Hill v. Colorado case, when a 6-3 vote upheld a Colorado law establishing an 8-foot buffer.  Five of those Justices are still on the Court, two of whom were in the Hill majority.

Late-term abortion case on appeal

In other Supreme Court news, Americans United for Life is reporting that Arizona officials are appealing a lower court decision striking down the state’s law limiting abortions after the fifth month of pregnancy. According to AUL,  “Arizona’s defense relies directly on the Supreme Court’s 2007 decision in Gonzales v. Carhart, which upheld the federal partial birth abortion ban act. In that case, the Supreme Court expressed concern with late-term abortions and their impact on the unborn child and women’s health.”