A fiscal reason for repealing N.H.’s buffer zone law

Photo by Beth Scaer

Two years ago, I noted that the state of Massachusetts had agreed on behalf of the state’s taxpayers to pay $1.24 million dollars to the attorneys for the plaintiffs in McCullen v. Coakley, the case in which the U.S. Supreme Court voted unanimously to throw out Massachusetts’ original buffer zone law.

At that time, I asked a question.

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?

I wouldn’t have guessed when I wrote those words that they’d still be apt today, as 2016 draws to a close.

In a few weeks, legislators will have their third opportunity to repeal the law and end the prospect of billing the taxpayers for defending it. An LSR (bill proposal) has already been filed by multiple sponsors.

The New Hampshire legislature failed in 2015 and 2016 to repeal New Hampshire’s buffer zone law. Like the scrapped Massachusetts law on which it was based, New Hampshire’s law was enacted with First Amendment restrictions without any documentation that less-restrictive means had been tried in order to control activity around abortion facilities.

With Granite State ingenuity, though, abortion providers have come up with a way around litigation: no abortion facility has chosen to post a zone. So much for claims that zones were necessary to protect patient safety. A federal judge turned away a challenge to the law by peaceful pro-life witnesses, ruling that since the New Hampshire law hadn’t actually been used against anyone, there was no case to decide.

Those plaintiffs have asked the First Circuit Court of Appeals to keep the challenge open. Litigation is going on even though buffer zone fans might wish otherwise.

Giving abortion providers the right to set “zones” within which the First Amendment is suspended does not protect anyone from violence or intimidation.

Calling the New Hampshire law “narrowly tailored” (lookin’ at you, Governor Hassan) doesn’t make it so. Chief Justice Roberts’s words in McCullen strike uncomfortably close to home. [Emphasis added.}

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.

New Hampshire’s law protects no one, is unenforced, and could become very expensive in court. Take it off the books.

Notes from the latest buffer zone repeal hearing

The New Hampshire Senate Health and Human Services committee had to change rooms twice yesterday to find a place with enough seats for the public. About 40 minutes past its scheduled time, the hearing on HB 1570 began, and buffer zone repeal was up for discussion. Will New Hampshire continue to have a law on the books that allows abortion facility operators to determine where and when First Amendment rights may be exercised on public property?

Committee members kept their questions to a minimum, no doubt mindful of the clock. No vote was taken yesterday; action is likely to come soon. There will be a few days’ notice before any Senate floor vote.

In brief, the hearing produced nothing new or shocking. Any information or persuasion that’s going to budge a senator is going to come from private communication. Remember, repeal was tabled after a tie vote in the Senate last year – and remember who voted how.


Here are some notes on this week’s hearing, with my thanks to Jennifer Robidoux who shared her own notes with me after I had to leave the hearing early. This does not mention everyone who testified.

  • Committee members present were Andy Sanborn (R-Bedford), Kevin Avard (R-Nashua), Sharon Carson (R-Londonderry), and Martha Fuller Clark (D-Portsmouth). Committee member Molly Kelly (D-Harrisville) was absent.  If you wish to contact the committee members to let them know it’s time to pass HB 1570 and get rid of the buffer zone, you should do so soon. Contact information is on the Senate web page. If you send an email, put “yes on HB 1570” or something similar in the subject line.
  • There was no organized demonstration of any kind outside the hearing.
  • There was no testimony from any municipal or law enforcement official.
  • The recent dismissal of the Reddy v. Foster case was mentioned by nearly everyone who testified. Interpretations varied.
  • Rep. J.R. Hoell, chief sponsor of the repeal bill, reminded the senators that the House has voted twice for repeal (2015 and 2016). He said the situation of having an unenforced law like the buffer zone on the books was “silliness at best.”
  • Cathy Kelley, who is outside Planned Parenthood in Manchester every Thursday and who founded Pennacook Pregnancy Center, supported repeal. She defended her right to pray and to talk to people outside PP. She spoke of offering healing after abortion. “That’s compassion. That’s what we’re about.” Sue Clifton testified for repeal as well, remarking on ministry to abortion workers. “We pray for abortion workers. We love them all and we are there to offer help.”
  • Joan Espinola, a plaintiff in Reddy v. Foster, cited both the U.S. and New Hampshire Constitutions to argue for her freedom to be peacefully present outside abortion facilities. “we’re not out to harm anyone….The Constitution doesn’t give protection from unwanted speech.”
  • Fellow plaintiff Jennifer Robidoux pointed out that she is already “buffered” from abortion facility clients by private property (e.g. the stockade fence at the Pennacook Street Planned Parenthood); “this law buffers me from public property.”
  • Two state representatives strongly opposed to repeal made the claim that any zones, should they be enforced, would respect “local control.” (I have already held forth at some length on that point.)
  • Attorney MIchael Tierney, who represented plaintiffs in Reddy v. Foster, told the committee that there are already laws on the books against harassment, blockade, and violence.  About that: I’m sure I’m not the only person who wonders why abortion facility managers don’t call on police to enforce those laws – assuming those laws are being violated.
  • Senator Donna Soucy (D-Manchester), as she has done since introducing the buffer zone bill in 2014,  claimed repeatedly that the New Hampshire buffer zone law is substantively different from the Massachusetts law struck down by the U.S. Supreme Court in McCullen v. Coakley, in that the old Massachusetts law set a firm 35-foot zone while the New Hampshire law allows a zone “up to 25 feet.” Senator Soucy makes this claim despite the fact that the Supreme Court did not use zone size as a factor in striking down the Massachusetts law.
  • The our-law-is-different-from-Massachusetts claim was also made to the committee by the representative of Planned Parenthood New Hampshire Action Fund, Kayla McCarthy. She cited an increased “volume” of protests without giving any details, which she might have submitted to the committee in writing.
  • The New Hampshire Medical Society registered its opposition to buffer zone repeal. So did the New Hampshire Public Health Association, whose spokesman said that the buffer zone law “does not impede protesting in a respectful manner.”

A reminder of what “local control” once meant to buffer zone advocates

The New Hampshire Senate Health and Human Services committee held a hearing on HB 1570 this afternoon. I’ll tell you what went on today that would have had me yelling at the committee if not for the restraining memory of the gentle teachings of my youth.

What was claimed today

Two state representatives who have supported the buffer zone from its days as a bill are Janet Wall and Timothy Horrigan, both Democrats from Strafford County district 6 (Durham and Madbury). Reps. Wall and Horrigan both testified against repeal at today’s hearing. Both were members of the House Judiciary Committee in 2014 when the buffer zone bill had its House committee hearing.

Representative Horrigan told senators at today’s hearing that buffer zones “have to be approved by municipal government.”

Representative Wall told the senators that the buffer zone law was written to be “consistent with local control. Current [buffer zone law] allows communities to determine what’s best for them.”

The problem with those claims is that the House committee on which both Horrigan and Wall served in 2014 refused to give municipalities a substantive rather than advisory role in the establishment of zones.

The fate of “local control” when the buffer zone bill was under consideration

I was present at the hearings when the buffer zone bill was under consideration in 2014. I attended the House Judiciary Committee’s executive session on the bill in May 2014. This is what transpired, according to the post I made just after that executive session. Note the remarks made by Reps. Wall and Horrigan.

Rep. Robert Rowe (R-Amherst) attempted to introduce an amendment to require that abutters be notified before imposition of a buffer zone and that there be a public hearing with the planning board to review the site plan in conjunction with law enforcement and public works representatives. That launched an illuminating if sobering discussion of what abortion advocates think of things like transparency, notice and hearings.

Rep. Janet Wall was concerned that the planning board “adds another layer to the process.” Rowe replied, “I did this not to add layers but to bring fairness to the process. I’m not trying to establish a roadblock.” Wall said, “Some people could interpret it that way.”

Rep. Paul Berch (D-Westmoreland) was blunter. “This would give municipalities veto power.”…

Rep. Charlene Takesian (R-Pelham) agreed with Berch. “I thought we were trying to set a state standard. Rep. Rowe’s amendment would give too much local control.” Durham’s Rep. Timothy Horrigan agreed. “This might give a planning board veto power. Don’t give a local board the power to override state statute.” From Rep. David Woodbury: this offers municipalities the chance “to make mischief.” Rep. Sylvia Gale, who said at last week’s executive session that she has been a patient “escort” at abortion facilities, warned that hearings and notice might allow people to “hijack the process.”

I was as distressed then as I was today at the willingness of legislators to delegate to private, unelected, unaccountable business entities the right to determine whether and when the public may occupy public property.

Here’s what the law says: “Prior to posting the signage [setting up a buffer zone] a reproductive health care facility shall consult with local law enforcement and those local authorities with responsibilities specific to the approval of locations and size of the signs to ensure compliance with local ordinances.” Note that word “consult.” No public hearings. No public notice. No municipality may prevent an abortion facility from establishing  a First-Amendment-free zone on public property; it may merely be “consulted” about the location and size of the signs demarcating the zone.

Long live local control.

Repealing the death penalty: not an easy call

I listened intently online this week as my state legislature voted to repeal the death penalty. It wasn’t close: 225-104. The bill now goes to the state senate. I’m happy with the day’s result, even though it leaves me unsettled.

You see, I lobby for pro-life bills, not including capital punishment, on which my employer takes no position. A number of the legislators who dependably cast votes recognizing the right to life for preborn children do not recognize such a right for death-row inmates. By being against the death penalty, even as a private individual, I recognize with regret that I offend some of those legislators without winning over others who defend abortion and consider me “anti-choice.”  From a pragmatic point of view, my decision to speak out against the death penalty was asinine.

I don’t regret writing about repealing capital punishment, but I’m sure glad I didn’t do it to please anyone. I would have misfired badly.

This week’s debate in the New Hampshire House was beyond heartfelt. Gut-felt, is more like it.

The chief sponsor of the repeal bill, Rep. Renny Cushing, has a calm manner which paradoxically makes his arguments particularly compelling. His father was murdered some years ago, so no one can accuse him seriously of not understanding the grief and anger of families of murder victims. He has worked for years for repeal of our state’s rarely-invoked capital punishment law. His experience and the calm authority with which he told his colleagues “New Hampshire can live without the death penalty” kept the words from sounding like a trite slogan.

On the other hand, his colleagues who want to retain the death penalty were not so calm. They were angry and indignant. Some of them are cherished defenders of the rights of the preborn.

Rep. Jeanine Notter, for example. She’s one of my town’s state reps. She has sponsored legislation to promote women’s health by increasing public oversight of abortion facilities and stiffening informed-consent requirements. She’s also a determined advocate for the death penalty for heinous crimes. She went to the well and sharply spoke to her colleagues about the murder of Kimberly Cates and the attempted murder of Mrs. Cates’s daughter. No one who lived in New Hampshire in 2009 and was old enough to comprehend news reports will ever forget the horror of that crime. Jeanine reminded the House of every horrendous detail. The murderers are now serving life sentences. There was public outrage that the death penalty didn’t apply at that time to home invasions (the law has since been changed). For Jeanine, justice and fairness dictate that such killers deserve to get what they dished out to their victims.

What can I say to her? I know where she is on this, and she knows where I am – and we agree to disagree, unable as yet to bridge the gulf.

Then there’s Rep. Al Baldasaro, who tackles bills like the Marine he is (I dare not say “was,” since he once told me there’s no such thing as an “ex”-Marine). He spoke with an anger that came through clearly to me across the audio stream. “We have fifty million dead babies, and we’re concerned about capital punishment?” He knew perfectly well that some of the strongest advocates of repealing the death penalty are some of the most reliable votes against any bill to regulate abortion. Baldasaro could see that contradiction perfectly clearly.

He sees no contradiction in his abortion and capital punishment views. He sees innocent life vs. guilty criminals. So many supporters of repeal – including Rep. Cushing, judging from his voting record – see no contradiction between protecting women’s “right to choose” and eliminating state-sponsored killing.

I do see contradictions. But there’s a huge void between what I see and my ability to explain it.

One interesting if protracted speech today came from the pro-choice Rep. Steve Vaillancourt. Erroneous capital convictions haunt him. So does repeal without retroactivity. He tried to amend the repeal bill so that it would commute the death sentence of Michael Addison, New Hampshire’s sole death row inmate. He said if repeal is passed without applying to Addison, it would be like serving a meal to the whole community except for the one person “living under the bridge.” He’s right.

That’s how I feel about abortion-related bills with rape-and-incest exceptions. Lots of babies under that particular bridge. That hasn’t stopped me from supporting things like the Hyde Amendment, even with its exceptions.

His amendment failed in a lopsided vote. Everyone in the chamber knew that the governor has said she’ll sign the bill as long as it’s not retroactive. And so it’s not a “clean” bill. Someone will mutter “hypocrisy.” More hard feelings.

It was balm to my ears to hear the words of Rep. Robert Rowe, who spoke late in the debate. Pro-life across the spectrum, Rowe got his law degree about fifty years ago. He has never forgotten a case study from his student days, involving an erroneous conviction. “We can always restore freedom. We can’t restore life.” It was impossible for me to tell, listening from a distance, if anyone was still listening to the debate at that point. Late in the day, during lengthy debate, attention wanders. I sometimes wonder if the later speeches change anyone’s mind. I hope Rep. Rowe’s remarks did.

Rep. Cushing closed out the debate by saying, “If we let those who kill turn us into killers, evil triumphs.” A few moments later, the House voted overwhelmingly for repeal – a decisive victory by any reasonable measure.

Yet I can’t help but think of the 104 representatives in the minority. I look at the roll call and see many names of compassionate defenders of innocent life. They offer nonviolent options to pregnant women, they fight to make abortion providers accountable for long-term outcomes to women’s health, they fight for the right of the babies to be born. They make the world a better place. When it comes to the death penalty, though, we’re far apart. And I’m the one who moved, after too many years of hesitation.

What can I do to reach across the divide?