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.