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.