Faced with a deadline for vacating its borrowed venue, the New Hampshire House ended crossover day by effectively tabling a number of bills including HB 430, buffer zone repeal.
The House met on April 7, 8, and 9 at NH Sportsplex in Bedford, allowing for seating spaced according to current COVID protocols. Friday the 9th was crossover day, the deadline for all bills originating in the House this year to be disposed of one way or another. Leaders in both parties knew in advance that the Sportsplex needed the House to adjourn by early Friday evening in order to accommodate other users of the facility.
The deadline came, with many bills still unaddressed. Result: in the absence of a vote, the unaddressed bills – including buffer zone repeal – will not advance in 2021.
At this writing, the docket for HB 430 lists its status as “miscellaneous.” That’s one way to put it.
To my knowledge, there is nothing to prevent these deferred bills from coming back in 2022, since that will be part of the same legislative biennium.
This isn’t over. Repeal bills will keep popping up, year after year. There ought not be room in New Hampshire law for a statute that allows a private entity to bar the presence of peaceful people from a public space.
New Hampshire’s buffer zone law permits managers of abortion facilities to determine where and when the public may be present on public property within “up to 25 feet” of a facility.
The buffer zone law was signed by then-Governor Maggie Hassan in 2014 with support from abortion lobbyists, despite the McCullen v. Coakley decision issued by the U.S. Supreme Court the same month striking down a similar Massachusetts law.
“Safety and balance.” That has been the cry parroted by supporters of New Hampshire’s unenforced and unenforceable buffer zone law ever since its introduction and passage in 2014. Keeping people safe means keeping people silent: that’s some screwy balance. No wonder the law has never been used.
It’s time for the Sidewalk Free Speech Act, HB 430, which will have its hearing tomorrow, February 9, at 2 p.m. It will repeal the buffer zone law, if passed.
Four times, efforts to repeal that law have failed. It’s imperative to keep trying. It’s time to erase a blot on New Hampshire’s statutes by getting rid of the buffer zone law. See the end of this post for details on how you can let legislators know that.
HB 430 ought to pass with an overwhelming majority. Anyone who values the First Amendment will support it. Abortion will be unaffected when HB 430 passes, but First Amendment rights will be reaffirmed.
“Safety and balance”
New Hampshire’s buffer zone law allows abortion facility managers to decide the times and places members of the public may occupy public property within 25 feet of the facility. That’s a “buffer zone.” Municipal agencies may be consulted about a proposed zone, but have no say in whether a zone is actually set up.
Is there any wonder that no one has dared to set up a buffer zone so far? Just how hungry for litigation does someone have to be in order to support such a law? And yet legislators have continued to tolerate having the law on the books.
The sponsor of the buffer zone law, Sen. Donna Soucy (D-Manchester, still in office), cited “safety and balance” repeatedly as she shepherded her bill onto then-Gov. Hassan’s desk in 2014. She spoke as though the advocates of safety were somehow in opposition to advocates of peaceful witness.
The buffer zone law makes no distinction between violent action and silent prayer. Neither the actions nor the intentions of a person outside an abortion facility figure into the buffer zone law. Only the opinion of a “reproductive health care facility” manager carries any weight.
Sen. Soucy was concerned about violence, as though people praying on the sidewalk weren’t just as concerned about it. She spoke of safety, even though there was zero documentation by law enforcement that any ordinances or state laws had been used against peaceful pro-life witnesses outside abortion facilities.
Violence is abhorrent, inside and outside an abortion facility. The buffer zone law has done nothing, and can do nothing, to prevent it.
So if the buffer zone doesn’t prevent violence, what’s its purpose? It was written to squelch unpopular speech. The last time a law similar to New Hampshire’s got to the Supreme Court, the Court threw it out on its figurative ear.
Supreme Court says there must be alternatives
A Planned Parenthood of Northern New England lobbyist testified in 2014 that a buffer zone was necessary, as attested by 60 complaints made by patients at the Manchester facility.
Complaints made to police? No. Those 60 complaints were made to PP. None resulted in any law enforcement involvement. So were any laws or ordinances broken in the course of those 60 complaints? Apparently not. Either PP didn’t report any complaints to the police – which even now makes me wonder just how seriously they take patient safety – or PP knew that the “complaints” didn’t rise to the level of criminal activity such as harassment, trespassing, disorderly conduct, or breach of the peace.
That’s not a good enough reason to keep a buffer zone law. Don’t take my word for it. The U.S. Supreme Court ruled 9-0 in McCullen v. Coakley, relative to a Massachusetts buffer zone law, that one could not impose First Amendment restrictions outside an abortion facility without first using less-severe alternatives to address objectionable behavior. In legal parlance, restrictions outside abortion facilities must be narrowly tailored.
The Court affirmed the right of states to impose reasonable restrictions on the time, place, and manner of speech. Overbroad laws, however, won’t withstand Supreme Court scrutiny.
That old struck-down Massachusetts law was the model for the New Hampshire law, by the way.
To quote from Justice Roberts’s opinion in McCullen, which I repeat was a unanimous decision, even as the abortion-friendly Justice Ginsburg was participating:
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.
…If Commonwealth officials can compile an extensive record of obstruction and harassment to support their preferred legislation, we do not see why they cannot do the same to support injunctions and prosecutions against those who might deliberately flout the law.
McCullen v. Coakley, 573 U.S. 464
You have to enforce other laws and ordinances before impeding anyone’s First Amendment rights. Simple. Yet since 2014, that fact has not been enough to persuade New Hampshire legislators to throw out the buffer zone law. Republicans and Democrats alike bear the responsibility for ignoring McCullen; it’s a bipartisan error.
Fun fact: Massachusetts taxpayers eventually had to pay $1.2 million in legal fees to the attorneys for Eleanor McCullen, the plaintiff in the Massachusetts case.
Law enforcement avoided
Even today, as buffer zone repeal is introduced, Planned Parenthood of Northern New England seems to avoid calling on law enforcement. From a flyer distributed to patients at its Manchester facility this month: If you feel that you have been harassed or threatened by anyone near the health center at your health care visit today, please send an email to share your thoughts or experience to the email addresses below. Your voice and your privacy are important, and your elected leaders should hear from you: Office of Manchester Mayor Joyce Craig, email firstname.lastname@example.org; Manchester ward 3 Alderman Pat Long, email email@example.com. You can also call the Mayor’s office right now at (603) 624-6500.
There’s something missing from that flyer: contact information for the Manchester police. If patient safety were a concern, the police phone number would be listed first. It’s not listed at all.
How to contact House Judiciary Committee about HB 430
I’m going to urge the members of the House Judiciary Committee to vote OUGHT TO PASS on HB 430. Here’s how.
Sign in on HB 430 immediately. Don’t wait until the hearing begins; the committee might not see your sign-in. Use this online form: choose February 9, House Judiciary Committee, HB 430, representing self, supporting the bill; indicate if you plan to testify and the amount of time you think you’ll need. You may also email your testimony (see below).
Watch and participate in the hearing via Zoom online. (All public participation in hearings is remote for the time being.) Zoom log-in: https://www.zoom.us/j/96805083773, or dial 1-929-205-6099 (note: that is a toll number; keep that in mind if you’re calling from a landline!). The webinar ID is 968 0508 3773.
Email your written testimony to the Judiciary Committee as soon as possible; you need not testify via Zoom. An email to HouseJudiciaryCommittee@leg.state.nh.us will reach all committee members.
President-elect Joe Biden has announced his intention to nominate Xavier Becerra to be the next Secretary of Health and Human Services. Becerra, currently California’s Attorney General, has a curious history when it comes to recognizing the free speech and conscience rights of his pro-life neighbors.
(I am not going to engage in a debate over who won the election. I think it’s unwise to pretend that Mr. Biden won’t be calling the shots as of Inauguration Day.)
Becerra succeeded Kamala Harris as California AG, after Harris was elected to the U.S. Senate. She is now vice-president-elect.
As Attorney General, Becerra followed Harris’s lead in two cases of particular interest to pro-life Americans.
The NIFLA case
In 2015, California legislators passed a law they dubbed the “Reproductive FACT Act.” It targeted pro-life pregnancy care centers, and their workers and volunteers, by requiring them to to provide information on how to obtain state-funded abortions. There were penalties for noncompliance.
The law prompted a lawsuit from an umbrella organization for several pregnancy care centers, National Institute of Family and Life Advocates (NIFLA). Harris and later Becerra represented California in defending the law.
The lawsuit made it to the Supreme Court, which in 2018’s NIFLA v. Becerra decision sided with NIFLA on a 5-4 vote.
NIFLA defenders summarize the decision
Attorneys with Alliance Defending Freedom represented NIFLA. Writing about the decision, ADF’s Maureen Collins wrote about the effects of the ruling. “Forcing someone to speak against their beliefs not only goes against the freedom of speech, it goes against plain common sense. Under this particular law, the very pregnancy centers dedicated to giving women alternatives to abortion were compelled by the state to advertise for abortion….The Supreme Court’s decision in NIFLA is simple. It protects the free speech of those with the viewpoint that women should have many choices other than state-sponsored abortion.”
Becket, another law firm dedicated to defending religious liberty, filed an amicus brief supporting NIFLA’s position. In a summary of the case, Becket attorneys wrote about the case’s importance. “The First Amendment protects speakers from being punished for advancing viewpoints not shared by the government. On issues as divisive as abortion, it is vital that the government not silence one side of the debate….Private organizations, including those with a religious foundation, must be free to operate in the public square according to their beliefs.”
Center for Medical Progress prosecution
The undercover journalism of David Daleiden, Sandra Merritt, and the Center for Medical Progress project revealed the commerce in fetal body parts carried out by some Planned Parenthood affiliates. In California, that led to prosecution – not of Planned Parenthood, but of Daleiden, who has been fighting criminal charges there since 2016.
The prosecutors: first Kamala Harris, then Xavier Becerra. Daleiden is facing multiple felony counts under California’s illegal-taping law. Undercover journalists, take note. Becerra, with taxpayer dollars, keeps the prosecution going even now, as 2020 draws to a close.
The Thomas More Society is representing Daleiden. Its website provides extensive background on the case as it has developed so far, with no apologies for the tone of zealous advocacy.
Becerra’s nomination as HHS Secretary depends on a confirmation vote to be held in the U.S. Senate in 2021. If the Senate were to tie on Becerra’s nomination, the tie-breaking vote would be cast by none other than Kamala Harris.
Post header image: U.S. Department of Health and Human Services headquarters, Hubert H. Humphrey Building, Washington DC. Photo by Carol M. Highsmith, from the Carol M. Highsmith Archive, Library of Congress, Prints and Photographs Division.
The U.S. Supreme Court tiptoed its way through a jungle of administrative law to hand another victory to the Little Sisters of the Poor. Some people just can’t stop insisting that nuns help provide birth control. In this case, it was the state of Pennsylvania, which deservedly lost on a 7-2 vote.
Or, in the words of a headline from CNBC (a business network, mind you): “Supreme Court says Trump administration can let religious employers deny birth control coverage under Obamacare.”
Let me fix that for them: “Supreme Court tells Pennsylvania to get its hands out of nuns’ pockets,” or “Supreme Court recognizes religious liberty interests of Catholic women,” or “Supreme Court says government cannot impose ruinous fines on Little Sisters of the Poor,” or even “Supreme Court lets employers stay out of employees’ private decisions involving sex.”
Yesterday’s post shared the news about a classic grassroots pro-life organizing effort in response to a pro-abortion exhibition at a Dover, NH arts venue. It seems that last night’s peaceful witness attracted even more participants than the first one a few days ago.
From a public post on Facebook from Phyllis Woods, who led the effort: “The experience of seeing nearly seventy prolife defenders come out on a Friday night to stand in witness to the truth that giving birth to a child is normal and abortion is anything but normal, was moving and heartwarming for me and I am both humbled and proud to be counted among them.”
Phyllis has been inspiring me for a long time. Looks like she’s not done yet.