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.

“Last sign of hope, first sign of mercy”

More than sixty people gathered in Manchester on Monday for an evening of prayer, pizza, and preparation in advance of Wednesday’s 40 Days for Life launch. A similar rally was held the previous day in Greenland. In Manchester, Save the 1’s Darlene Pawlik and attorney Michael Tierney were the featured speakers at the event emceed by 40DFL coordinator Jen Robidoux.

Jen Robidoux (blue shirt) welcomes Darlene Pawlik to the 40DFL kickoff rally
Jen Robidoux (blue shirt) welcomes Darlene Pawlik to the 40DFL kickoff rally (E. Kolb photo)

Quoting 40DFL leaders David Bereit and Shawn Carney, Jen said, “We are the last sign of hope for the mother and baby when they arrive, but also the first sign of mercy to the women as they leave.” She and her leadership team have ambitious goals, and they urge everyone volunteering for 40DFL to invite others to join in. “Invite people from your church – remember, 40 Days for Life is nondenominational. Invite people to events like the midpoint rally. Let’s fill those vigil hours [7 a.m.-7 p.m., seven days a week]. It’s time to blow the trumpets of victory. Tonight is the beginning of the end of abortion in Manchester.”

Jen reminded everyone that accepting 40DFL’s Statement of Peace is a requirement for participation in the campaign. Common sense dictates that people praying on the sidewalk outside abortion facilities keep a cell phone or camera handy to record any incidents, and “pray with at least one other person.” (As someone who’s on the calendar for some 7 a.m. shifts, I know I can expect some solo time. Still, her guidelines make sense.)

Darlene Pawlik (E. Kolb photo)
Darlene Pawlik (E. Kolb photo)

Darlene is fresh from an appearance on Dr. James Dobson’s Family Talk, where she joined other Save the 1 representatives to talk about why she’s pro-life in all circumstances, especially “hard cases” like rape – because she herself is a child of rape and a survivor of sexual trafficking. She’s a New Hampshire activist with a heart for women and girls in crisis, particularly those who are being sexually abused. “The girls are hard” when they approach abortion facilities, she warned. From her own experience, she knows that some of the teens at abortion facilities are brought there by their abusers. “The mindset is ‘this is what I have to do; I can’t tell my parents.’ Your message needs to be ‘there are places you can go besides here.'”  To sidewalk counselors, she says “You’re the heroes here.”

Michael Tierney (E. Kolb photo)
Michael Tierney (E. Kolb photo)

Michael began with a brisk reminder: “This is not a picket or a protest, and it IS legal.” His listeners were eager for an update on the buffer zone lawsuit, Reddy v. Foster. “The buffer zone law is all about squelching pro-life speech. Why? Because the pro-life message, especially prayer, is effective.” In a status report filed in federal court last Friday, all parties to the suit agreed that there had been no “factual changes” since a temporary restraining order was issued in July to block enforcement of New Hampshire’s buffer zone law. The restraining order thus remains in place. He asked participants to contact him or Jen Robidoux if any signs go up outside facilities, delineating a zone – “we need to report that to the Court.”

Why did New Hampshire go ahead with a law targeting free speech, right after the U.S. Supreme Court struck down a similar law from Massachusetts? After all, the Supreme Court decision prompted the cities of Burlington, VT and Portland, ME to repeal abortion facility “buffer” laws. MIchael said that New Hampshire is attempting to show that its law is different, because the state itself isn’t squelching speech, but merely giving abortion providers the option of doing so. A novel approach, to be sure. It’s possible that the law might be repealed by legislators next January. Michael warned that it’s an open question whether it would be a straight repeal or a repeal followed by replacement with something worse.

 

Speaking of the Planned Parenthood facility in Manchester, where 40DFL has had several campaigns, Michael said PP knows it can’t defend the law. “So, they’re trying to figure out what they can get from people outside to show that we need a buffer zone. Be on your best behavior not because there are video cameras, but because of point #3 [in the 40DFL statement of peace]: ‘I will show compassion and reflect Christ’s love to all abortion facility employees, volunteers and customers.’ It’s as simple as that. Think about how best you can show Christ’s love, and you’ll be fine. Just because a person goes into a clinic, it doesn’t mean you’re not having a positive effect.”

Photos from the Greenland kickoff rally (photos by Jen Robidoux)

Greenland, NH 40DFL volunteers
Greenland, NH 40DFL volunteers

 

On the sidewalk, Greenland NH
On the sidewalk, Greenland NH
Past the picket fence at the Lovering Center abortion facility, Greenland NH
Past the picket fence at the Lovering Center abortion facility, Greenland NH

 

 

 

 

Assorted NH notes for a busy week

New Hampshire’s a lively place these days. A recent court decision that was good for educational choice might have an unexpected bearing on pro-life activists. There’s an election next week, in case the glut of political ads in your mailbox isn’t enough of a clue. Events are crowding the calendar. Here’s the smorgasbord; help yourself.

The New Hampshire Supreme Court just did what?

DSCF7739
New Hampshire Supreme Court building. Ellen Kolb photo.

After I was finished doing the happy dance over the state Supreme Court’s recent decision on the education tax credit (Duncan v. State of NH), I heard from various sources that the denial of standing to the plaintiffs (leading to dismissal of the case) might not augur well for plaintiffs in other cases who can’t prove direct harm from a challenged law. Does this mean that the plaintiffs in Reddy v. Foster, the buffer zone suit, might lack standing since the law hasn’t actually been used against them yet? That’s what at least one defendant has already asserted in an affidavit, and Duncan might have a bearing on the point. It’ll be interesting to see if this comes up at the status hearing on Reddy later this month.

One possible scenario: the anti-free-speech “buffer zone” law stays on the books, unenforced. Perhaps no one will be granted standing to sue until the law IS enforced. In that situation, abortion advocates could crow about a hollow legislative victory while pro-life witness continues unabated. That’s strictly speculation, but it’s an interesting possibility. See you in court.

What blog visitors are reading

Jim Lawrence (photo from lawrenceforcongress.com)
Jim Lawrence (photo from lawrenceforcongress.com)

For what it’s worth, the two most-clicked-on Leaven for the Loaf posts in the past few days have been on Second Congressional District candidate Jim Lawrence and U.S. Senate candidate Jim Rubens. People seem to be checking out the underdogs this week. Leaven’s interview with Bob Smith is getting attention as well.

Not one, not two, but three CD2 candidates with some pro-life credentials

Rep. Marilinda Garcia (photo from marilindagarcia.com)
Rep. Marilinda Garcia (photo from marilindagarcia.com)

The Republican primary in the Second Congressional District (CD2) is becoming heated. I’ll leave commentary on that to other observers. What’s unusual is that Marilinda Garcia, Gary Lambert and Jim Lawrence all have voting records at the state level that give abortion advocacy groups fits. Lambert had only a single two-year term, so his record is thin. Nevertheless, all three can claim to have supported some pro-life legislation while in Concord.

CD2 voters can ask Gary Lambert about a 2010 survey in which he said “I am personally pro-life but I do not believe the government should dictate what a woman can or cannot do on this issue.” I hasten to add that once elected in 2010, Lambert supported a fetal homicide bill and a ban on partial-birth abortions (as did Garcia in the same term), and he opposed a motion to kill an informed consent bill. 

Gary Lambert (photo from nh.gov)
Gary Lambert (photo from nh.gov)

Lambert’s personally-opposed-but statement can still be squared with those votes, since none of the bills would have prevented a woman from obtaining an abortion. In fact, the fetal homicide bill did not address abortion at all. Abortion advocacy groups fought all those bills anyway. Go figure.

Events

The Pray for Life Center in Manchester is hosting a baby shower this Sunday, September 7. More information here.

40 Days for Life begins September 24 in Manchester (outside PP on Pennacook Street) and Greenland (outside the Lovering Center). Register at 40daysforlife.com for access to the vigil calendars where you can sign up for an hour (or lots of hours) of prayerful, peaceful pro-life witness. Opening rallies: September 21 in Greenland, September 22 in Manchester.

New Hampshire Right to Life’s annual banquet has featured some great speakers (as with Kristan Hawkins in 2013), and this year’s event promises more of the same. Julia Holcomb is the headliner at NHRTL’s banquet on Thursday, October 2 at the Executive Court banquet facility on Mammoth Road at the Manchester-Londonderry town line. Reservations are now being accepted.

“Living Life to the Fullest” is the title of an all-day event at St. Patrick church in Newport NH on Saturday, November 8. Four sessions will address aging, bioethics, end-of-life care and advance directives.

The primary election is next Tuesday, September 9. The general election is November 4. If you think you’re too busy to vote, ponder this: every single seat in the New Hampshire legislature is up for grabs. That’s enough to get me going to the polls.

Next Leaven for the Loaf newsletter coming soon

The next email newsletter for blog subscribers is scheduled to go out Monday, September 8, featuring information on contested state rep primary races where pro-life incumbents face challengers. Don’t miss it. Subscribe by clicking the “newsletter” button on the Leaven for the Loaf Facebook page or subscribe to the blog directly.

Do you have a life-issues event coming up? Please add Leaven for the Loaf to your contact list: ellen@leavenfortheloaf.com

Parting shot

An observation from Cathy Kelley, as published in the Pray for Life Center weekly update for August 28:

After bringing a woman in for an abortion a man was told to leave the premises. Seems PP [in Manchester] was not happy he had a gun in his holster. The woman was picked up later by a man carrying a knife. The employees say they are intimidated by people holding rosary beads and brochures. REALLY???”

 

Note to AG Foster: Londonderry gets it right

Some days, the morning headlines are just too good to be true. I hope New Hampshire attorney general Joseph Foster sees this one.

Here’s a summary: On the mean streets of Londonderry over the weekend, a man attempted to interfere with two women who were going about their business. He was trying to contact them with an important message. They didn’t want to hear it. He persisted. He was warned to cease and desist. Being a young idealist, he kept on keepin’ on. Finally the cops saw him yelling at the women. That did it: he was arrested for disorderly conduct.

Police used existing law to deal with the situation. Perfect. No need to “buffer” the First Amendment to protect those women.

The women were Governor Hassan and Senator Shaheen. They were walking in a parade, not walking into an abortion facility. They were entitled to safety, as are clients and workers at abortion facilities. The man arrested for disorderly conduct was wearing a chicken suit (you can’t make this up), not carrying a “choose life” sign. The Londonderry police didn’t need a special law to be passed in the name of “safety and balance” in order to do their job. Chicken Man was cited for disorderly conduct, and the parade went on without further incident.

Perhaps the defendants in Reddy v. Foster could look at how Londonderry handled the situation at the parade. New Hampshire’s buffer zone law already looks unconstitutional. Londonderry makes it look silly as well. Laws are already in place against disorderly conduct and violence and trespassing. The disorderly conduct arrest at the parade brings to mind a crucial point in the U.S. Supreme Court’s decision to overturn Massachusetts’s old buffer zone law: a law abridging the First Amendment outside abortion facilities – or anyplace else – cannot possibly hold up in court if less-restrictive measures to control disruptive behavior haven’t been used.

It was Londonderry’s state senator, Sharon Carson, who made the principal arguments against the buffer zone when the bill came up in the Senate. She spoke powerfully, warning her colleagues about the First Amendment violation inherent in the bill.

I don’t know what’s in the water in Londonderry, but I sure hope it spreads.

Field guide to the buffer zone suit that you’re paying for

Five of New Hampshire’s county attorneys have found themselves in a position they never sought: they’ve been called upon to defend New Hampshire’s buffer zone law, due to go into effect this week. Apparently, the conversations that preceded the introduction and passage of New Hampshire’s anti-speech law didn’t include the local prosecutors. Regrettable oversight, that.

Yesterday came the civil rights lawsuit that every supporter of the law should have expected, in defense of the First Amendment. Seven New Hampshire residents committed to peaceful pro-life witness are pleading for an injunction to prevent enforcement of the law.

This afternoon, according to a Twitter post by Nashua Telegraph reporter Kevin Landrigan, Planned Parenthood of Northern New England said it has “no present intentions” to post the zones. Tough to tell from that one line if the lawsuit factored into that decision.

The plaintiffs, and the attorneys standing with them

The seven plaintiffs aren’t alone as they approach federal court in Reddy v. Foster. The Alliance Defending Freedom is on the job (here’s their press release about the case). Among the allied attorneys is Mark Rienzi, who was involved in the Massachusetts buffer zone case, which yielded the 9-0 Supreme Court smackdown of the Massachusetts law. Another allied attorney on the case is Manchester’s Michael Tierney, who has found his way into other posts on this blog. (He was also one of my 2013 Underrated Activists.)

The case is named for the first-listed plaintiff: Sister Mary Rose Reddy. She wouldn’t know me, but I have been a fan of hers for a long time. She and her co-workers have worked for years providing care for countless New Hampshire children from troubled families. She’s a nun with the Daughters of Mary, Mother of Healing Love, and her ministry has been at the St. Charles Home in Rochester. These “Running Nuns” started a nationally-renowned running program for the children they serve. (Anyone’s who been to a Seacoast-area race in the past decade has seen the red singlets of the St. Charles Eagles.) Her community also has a suicide-prevention ministry. She did what she could as a citizen by testifying against the buffer zone bill in Concord, to no avail. She didn’t go looking for this case, I’m sure, but she’s not ducking it. When I look at her, I see a dynamic woman, her life devoted to serving children, living a counter-cultural life that’s an example of peaceful witness.

And then there’s Jennifer Robidoux. I met her when I covered the Fall 2013 40 Days for Life campaign in Manchester. I know firsthand how committed she is to peaceful, prayerful presence at abortion facilities. When I challenged readers a few months ago to invite people to like the blog’s Facebook page, pledging an hour to 40DFL for each new follower, Jen pulled out all the stops – and now I “owe” thirteen hours to the next 40DFL campaign. She’s good-humored, hardworking, and outspoken. As with Sister Mary Rose, this is not a woman who gets up in the morning wondering whom she can sue. She has plenty to keep her busy. She cares about the women entering abortion facilities, even if they’re not coming for abortions. She believes it’s worth bearing peaceful witness to the fact that money is exchanged for dead children – excuse me, “terminations” – in those buildings. She cares enough about her country to take its founding document seriously. Litigation to vindicate her rights is her last resort.

Sue Clifton, Joan Espinola, Terry Barnum, Jackie Pelletier, and Betty Buzzell round out the list of plaintiffs. I know some of them, going back quite a way. I met Terry briefly when Concord considered its own 35-foot buffer zone. These are gutsy people. They’re not after material gain; they’ll be lucky if they’re awarded attorney’s fees. They’ll be called nasty names. They’ll be accused of waging war on women (never mind the fact that six of them ARE women). They’ll probably be used as campaign fodder by abortion advocates. And still, there they stand.

The defendants – and your tax dollars at work

Defendants are Attorney General Joe Foster; the municipalities of Manchester, Concord, Greenland, Keene, and Derry, home to abortion facilities; and the county attorneys in Hillsborough, Merrimack, Strafford, Cheshire and Rockingham counties.

Translation: town, county and state tax dollars are going to be spent to defend this offensive, insulting, totally unnecessary and apparently unconstitutional law. That’s your money and mine. Those funds could have been spent enforcing existing laws against trespass and disorderly conduct outside abortion facilities, if there had actually been such violations. There were none reported to police, so abortion defenders had to go to their friends in the legislature to invent a law that could be used to criminalize peaceful pro-life witness. A bipartisan group of friends, I hasten to add.

This waste of taxpayer funds on circumvention of the First Amendment was created by the people who sponsored, voted for, and promoted the law. It’s a pity that the sponsors and Governor Hassan can’t be held personally liable, given their unyielding support for the bill even after McCullen. I think the signing-ceremony photo op might backfire.

What’s at issue: reading the complaint

Click here for the full text of the 30-page complaint, kicking off the lawsuit.

Which court? The suit is being filed in United States District Court, alleging violation of constitutional rights pursuant to federal civil rights laws.

What are the plaintiffs asserting? They claim violation of their First Amendment rights to freedom speech and of the press, their Fourteenth Amendment rights to due process and equal protection, and their rights to free speech and equal protection under the New Hampshire Constitution. “The state of New Hampshire has no justification for creating even one of these anti-speech zones in traditional public fora, much less creating such zones throughout the entire state. The First Amendment contemplates no possible justification for such a measure….McCullen [the Massachusetts case] directly controls this case and eliminates any plausible legal justification for the law challenged here.”

What remedy do the plaintiffs seek? They want New Hampshire’s buffer zone law declared unconstitutional. They want an immediate injunction against the law to prevent it from being enforced. “Injunctive relief will preserve the status quo of robust freedom of speech in New Hampshire, which has caused no cognizable public or personal harm and has instead yielded great public benefit.”  Plaintiffs are also asking to be awarded their legal fees.

Awarding legal fees to the plaintiffs would serve the sponsors right. Unfortunately, the sponsors wouldn’t feel the pinch. We all would. Recall that in 2009 New Hampshire paid PPNNE $300,000 to settle a claim for legal fees after PP took New Hampshire’s first parental notification law to the U.S. Supreme Court. Yes, then-Attorney General Kelly Ayotte approved the settlement, because she can do arithmetic. PP can afford protracted litigation; the state cannot. I remember that Ayotte herself defended the law in Court.

This kind of case takes time. I wonder if the sponsors will still be in office when the case runs its course. One thing’s for sure: the sponsors made certain that one way or another, we’ll all be paying for the buffer zone law.