Opponents of New Hampshire’s court-enjoined buffer zone law eked out a narrow victory when the House Judiciary Committee voted 11-9 this week to recommend repeal. The repeal bill, HB 1570, now goes to the full House for action on March 8 or 9, with a floor fight all but certain.
According to Rep. Kurt Wuelper (R-Strafford), writing in support of the Judiciary Committee majority’s Ought to Pass (OTP) recommendation, “The majority believes the current law is an unconstitutional restriction on the people’s right to freedom of speech and access to public property. Keeping the law commits the state to years of legal expense defending a law that purports to resolve a problem never substantiated by any documented offense.”
Shortly after the buffer zone law was signed by Governor Maggie Hassan in 2014, it was challenged by seven New Hampshire pro-life activists in the case Reddy v. Foster. A federal court judge issued a preliminary injunction against enforcement of the law. The case is still open.
Rep. David Woodbury (D-New Boston) of the Judiciary Committee wrote for the minority, urging that the bill be found inexpedient to legislate. “The statute is dissimilar to a Massachusetts statute found unconstitutional in 2014 because the buffer zone is smaller and subject to modification as conditions require. The statute strikes a fair balance between the interests of these lawfully using the sidewalks and access ways and those wishing to express their opposition to the abortion procedure. The statute is on hold until the federal court rules and should not be repealed, if at all, until the court rules.”
The Massachusetts statute was struck down by a unanimous U.S. Supreme Court (McCullen v. Coakley) not because of the size of the Massachusetts “buffer,” but because the statute violated the First Amendment without less-restrictive means having first been used to address alleged problems caused by peaceful pro-life presence outside abortion facilities. As Chief Justice Roberts wrote in McCullen,
“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.”
The New Hampshire law does differ from the struck-down Massachusetts law in an important respect, not noted by Rep. Woodbury: the New Hampshire measure delegates to abortion providers the authority to determine a buffer zone’s size, placement, and enforcement hours.
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