Time to kill the “buffer zone” 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 mayor@manchesternh.gov; Manchester ward 3 Alderman Pat Long, email long55@comcast.net. You can also call the Mayor’s office right now at (603) 624-6500.

Photo by Catherine Kelley. Used with permission.

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.

Don't buffer the First Amendment

Header photo: Michael Drummond/Pixabay.

Weekend Reading, 4/8/16

Every Friday, I’ll offer you links to three posts of the week from other blogs and news sources to take you into the weekend. My favorite writers, a fresh take on a familiar topic, or just plain interesting stuff: look for the cream of the week’s crop right here (after you read Leaven’s posts, of course). 


Kathryn Lopez, “Healing After Abortion”

“This is the side of the pro-life movement that isn’t usually in the headlines. Abortion seldom makes the front pages — not unless, say,  a major presidential candidate puts his foot in his mouth. And so it was when Donald Trump answered a very typical question from Chris Matthews. The MSNBC host was asking about the mainstream caricature of those who oppose abortion. And Trump, betraying a total unfamiliarity with the ministries and attitudes and heart of the movement, bought into and fed the caricature. It would do him good to meet the community of women religious… founded [by Cardinal O’Connor] 25 years ago. The cardinal had pledged that anyone who was pregnant and needed help could come to the Church in New York and find it. The Sisters would be at the heart of that help.” Read the rest of the post… 

Steve MacDonald, “Planned Parenthood New Hampshire Lies (Updated)” (granitegrok.com)

“So you will be instituting the buffer-zones immediately? You know, to protect women from the ‘violence, harassment, or threats’ to which you claim they have been subjected. That would be the right thing to do.

“But what does it say if you don’t? Every day you wait aren’t you subjecting women to this treatment you insist exists? What does that say about your commitment to safe, legal healthcare for these women? What does it say about you?

“It says you really don’t care, doesn’t it? It says that you are a liar. That this is all just a game to you.

“So get those buffer-zones in place, then we can find out if this law is as constitutional as you claim.” Read the rest of the post...

Béatrice Fedor: “Abortion pictures on the street: Why Not?” (400wordsforwomen.com)

“Abortion images don’t exactly say: ‘I care about you. Come to me if you are pregnant and scared.’ On the contrary, an abortion-minded woman would most likely run faster to the abortion clinic.

“Also, trying to confront post-abortive women with a graphic depiction of their sin doesn’t say: ‘I understand that you are hurting. You can confide in me and I can refer you to an abortion recovery program’. Instead, it says: ‘I’m judging you for what you have done. There is a huge, irreconcilable difference between me and people like you.’ Read the rest of the post…


 

Note to AG Foster: Londonderry gets it right

Some days, the morning headlines are just too good to be true. I hope New Hampshire attorney general Joseph Foster sees this one.

Here’s a summary: On the mean streets of Londonderry over the weekend, a man attempted to interfere with two women who were going about their business. He was trying to contact them with an important message. They didn’t want to hear it. He persisted. He was warned to cease and desist. Being a young idealist, he kept on keepin’ on. Finally the cops saw him yelling at the women. That did it: he was arrested for disorderly conduct.

Police used existing law to deal with the situation. Perfect. No need to “buffer” the First Amendment to protect those women.

The women were Governor Hassan and Senator Shaheen. They were walking in a parade, not walking into an abortion facility. They were entitled to safety, as are clients and workers at abortion facilities. The man arrested for disorderly conduct was wearing a chicken suit (you can’t make this up), not carrying a “choose life” sign. The Londonderry police didn’t need a special law to be passed in the name of “safety and balance” in order to do their job. Chicken Man was cited for disorderly conduct, and the parade went on without further incident.

Perhaps the defendants in Reddy v. Foster could look at how Londonderry handled the situation at the parade. New Hampshire’s buffer zone law already looks unconstitutional. Londonderry makes it look silly as well. Laws are already in place against disorderly conduct and violence and trespassing. The disorderly conduct arrest at the parade brings to mind a crucial point in the U.S. Supreme Court’s decision to overturn Massachusetts’s old buffer zone law: a law abridging the First Amendment outside abortion facilities – or anyplace else – cannot possibly hold up in court if less-restrictive measures to control disruptive behavior haven’t been used.

It was Londonderry’s state senator, Sharon Carson, who made the principal arguments against the buffer zone when the bill came up in the Senate. She spoke powerfully, warning her colleagues about the First Amendment violation inherent in the bill.

I don’t know what’s in the water in Londonderry, but I sure hope it spreads.

Super Secret Stuff

Gov. Maggie Hassan (D-NH). Photo from nh.gov
Gov. Maggie Hassan (D-NH). Photo from nh.gov

[Update: Shortly after I posted this, an attorney gently inquired of me if the Governor’s action has to wait on formal enrollment of the bill, in addition to the votes. I defer to him on matters like that, and I apologize for any error I made.]

The Governor of New Hampshire, Maggie Hassan, is a frankly and fully identified “pro-choicer.” The passage of SB 319, the buffer zone law, should be on her desk by now. So when’s the party?

According to her web site, Hassan has issued statements immediately upon the passage of several bills this session: Medicaid expansion, a transportation funding bill, improvements to the state’s domestic violence laws, “paycheck fairness.” Nowhere on the list, at least as of noon today, is a statement on the passage of the buffer zone bill.

Passage of landmark pieces of legislation in areas promoted by the chief executive usually feature a thumbs-up statement as soon as the legislature passes the bill, followed by a signing ceremony with advocates of the bill looking on approvingly. So far, no thumbs-up on the Governor’s web page. No announcement of a signing ceremony (although I’m sure one is in the works). What’s she waiting for?

model signI can’t believe she’ll avoid a ceremonial signing, nor can I believe she’ll let it become law without her signature. She has a few days yet to prove me wrong. Is she just waiting for confirmation from the major abortion providers that their signs are ready to go up? The law will go into effect the moment she signs it, but it can’t be enforced at any abortion facility until the signs are up around it. Perhaps she was hoping yesterday’s Supreme Court decisions would include one upholding Massachusetts’s buffer zone law. No luck there.

The buffer zones, those “no First Amendment for you” signs, will go up any day now. You’d think, though, that there’d be more celebration from an EMILY’s List beneficiary.