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.
Update on HB 430: the New Hampshire House will vote on buffer zone repeal at its next session, on a date to be announced soon. HB 430 was one of 17 calendared bills left hanging when the House ran up against a hard deadline at its borrowed venue in Bedford.
There’s no word yet on when the House will once again meet in Representatives Hall at the State House. Thus far in 2020, the House has met at University of New Hampshire facilities and, most recently, at the Bedford Sportsplex, in order to observe COVID precautions including social distancing.
The New Hampshire House Judiciary Committee frowned on the life-issue bills that come before it last week. The full House will meet on Wednesday, February 24 and Thursday, February 25 to vote on the committee’s “Inexpedient to Legislate” (ITL) recommendations.
On three of the bills, the votes were 11-10 on ITL motions, with Republican committee chairman Edward “Ned” Gordon joining the committee’s ten Democrats in the majority.
Usually, overturning a committee report on the House floor is challenging. Most House members don’t have time to research every bill, and so they lean heavily on the brief committee reports printed in the House calendar.
They also lean on two other things: recommendations from party leadership, and messages from constituents. Most of us can’t control the former. You can definitely influence the latter.
My own message to my reps on the bills with 11-10 ITL recommendations will be as straightforward as I can make it: reject the Judiciary Committee’s majority reports, and then vote Ought to Pass on HB 233 (born-alive protection), HB 430 (buffer zone repeal), and HB 625 (protecting preborn children after 24 weeks’ gestation). And for crying out loud ask for roll call votes.
Explaining the votes: committee reports
The House Calendar for next week’s session contains the reports on each bill, majority and minority. Here are excerpts, along with a few irrepressible comments from me. The words from the reports are in italics.
HB 233, protection for infants who survive attempted abortions
The majority report recommending Inexpedient to Legislate on HB 233 was written by Rep. Marjorie Smith (D-Durham), who took a different tack from her claim on a born-alive bill last year that “there’s no such thing as an abortion up until birth.” This time, she offered a few other reasons for not providing enforceable protection for children surviving attempted abortion. “It provides that legislators, not parents and their physicians, should determine appropriate medical care….Infants with a few moments, hours, or days would be taken out of the arms of their parents, hooked up to machines, and their parents would be denied the right to say how these last moments of a child’s life would be spent. The majority concluded that passage of this bill was not in the best interests of the state or its citizens.”
That last sentence chills me. I devoutly hope that you never have to think about whether your own care needs to be evaluated through the lens of “the best interests of the state.”
Rep. Kurt Wuelper (R-Strafford) wrote a minority report on behalf of the ten committee members who supported the bill. “We ask no more than that ‘medically appropriate and reasonable care’ be provided to every baby born; no matter the circumstances of birth, no matter if the baby is wanted or not….The decision of what is medically appropriate and/ or reasonable remains where it has been, with medical providers and families….The choice is simple but profound: life or death for a helpless child.”
HB 430, buffer zone repeal
Rep. Alexis Simpson (D-Exeter) wrote the “Inexpedient to Legislate” report for HB 430. “The current law allows flexibility for communities to tailor a zone according to local factors and public safety needs.” I can’t let that pass without comment: communities have no authorization under law to set up buffer zones. Managers of abortion facilities do. “…This bill would repeal the law passed in 2014 that authorized flexible, non-arbitrary, ‘buffer zones’ around reproductive health care facilities to provide for patient safety….the current law allowing health care centers to establish buffer zones that suit their local situations should remain in place.”
That “non-arbitrary” bit was a nice touch, as fiction goes. The law delegates the authority to set up a zone to an abortion facility manager, an employee of a private concern, who determines the zone’s location and extent (“up to 25 feet”), and even whether or when a zone is needed. Merriam-Webster offers a definition of “arbitrary“: “depending on individual discretion and not fixed by law.”
Rep. Mark McLean (R-Manchester), for the ten reps dissenting from the ITL report: “…the US Supreme Court struck down the Massachusetts buffer zone law upon which this law is based, and the call for a repeal of its New Hampshire counterpart has followed ever since. The minority of the committee expressed the belief that existing criminal threatening laws are adequate to address security concerns at reproductive health care facilities, and noted that no facility has ever implemented the law’s provisions in spite of the urgent need expressed by its supporters.”
HB 625, Fetal Life Protection Act
New Hampshire offers no protection for preborn children at any point in pregnancy. HB 625 would change that by restricting abortion after 24 weeks’ gestational age, with an exception for the life of the mother.
That was too much for the ten Judiciary Democrats and Republican Rep. Gordon. Rep. Marjorie Smith wrote the majority’s ITL report, saying in part: “This bill sets an extremely narrow exception to the prohibition of abortion, excluding emotional, psychological, and other health factors worthy of consideration as determined by a patient and the patient’s doctor. Not even rape or incest would be a permissible exception. Viability varies with each pregnancy. It has no predictive value in utero. It is only after birth that viability might become a relevant measure.”
Rep. Kimberly Rice (R-Hudson) offered the minority’s view. From her report: “This bill prohibits abortions on babies older than 24 weeks who can live outside of the mother’s womb, except when the alternative poses significant risk to the life or health of the mother. This bill implements the compelling state interest in protecting viable babies and minimizes risk to the mother’s health. This is about the values that define us….Testimony showed this bill to be consistent with standards of care for pregnant women who present with very difficult pregnancies. The minority of the committee believes that New Hampshire should never be a haven for those like Kermit Gosnell, the Pennsylvania abortionist who heartlessly snipped the spinal cords of ‘accidentally’ born babies. We are proud to support legislation that reflects our values and protects the sanctity of human life. The minority stands in the gap, defending the most defenseless, and giving voice to the voiceless. New Hampshire should join the many states with post-viability bans by adopting this bill.”
What about related bills heard last week?
HB 622, protecting nascent human life as a reasonable and valid state interest, was retained in committee and will not go before the House until 2022. Watch for a committee work session next fall.
HB 596, with its single sponsor, addressed public funding of abortion. The committee report explains the 20-1 ITL vote: “It became clear at the hearing that HB 434 had much greater support and was the preferred alternative. While many committee members support the intent of this bill, it did not make sense to have the two bills competing with each other.” As for that “preferred alternative,” HB 434 suffered one of those 11-10 ITL votes. It is not listed on the House calendar for February 24-25.
“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 email@example.com; Manchester ward 3 Alderman Pat Long, email firstname.lastname@example.org. 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.
Two bills to change New Hampshire’s policy of unrestricted abortion, along with bills to repeal the buffer zone law, bar public funding of abortion, and protect children born alive after attempted abortion, will be heard in the New Hampshire House Judiciary Committee on February 9 and 10.
These measures respecting human life and conscience may be voted on by the committee at any time after the hearings, without a separately-scheduled session.
To me, some of these bills clearly show better legislative preparation than others. Some show more broad-based support than others. Read them for yourself – then act.
You can email the Judiciary Committee with your written opinion and testimony on any or all of these bills, using a separate message for each bill. A message to HouseJudiciaryCommittee@leg.state.nh.us will reach all 21 committee members.
You can testify online during the hearings, using the sign-in procedure in advance and then joining the online Zoom videoconferencethe day of the hearing. Links are below, taken from the February 5 House Calendar. Note that there is a telephone option as well. These hearings are likely to be lengthy.
What you cannot do is go to Concord and have face-to-face contact with the committee members, which makes electronic communication vitally important.
What’s the “FN” attached to some bills?
“FN” stands for Fiscal Note, a reference to the bill’s potential cost. It is not essential to include FN when contacting a legislator. For example, HB 233 and HB 233-FN refer to the same bill.
Tuesday, February 9
Zoom log-in: join any of Tuesday’s Judiciary hearings by going online to https://www.zoom.us/j/96805083773, or dialing 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.
9 a.m.: combined hearing on two bills to restrict post-viability abortions
HB 622-FN: an act to protect nascent human life as a reasonable and valid state interest. This bill would bar abortion of a viable fetus, except in cases of “a clear and present danger to the life or health of the mother.” Sponsors: Reps. Walter Stapleton (R-Claremont), Max Abramson (R-Seabrook), Bill Nelson (R-Brookfield), Mark Pearson (R-Hampstead).
HB 625-FN: the Fetal Life Protection Act, barring abortions after the fetus reaches 24 weeks gestational age, with exceptions for medical emergencies. Sponsors: Reps. Beth Folsom (R-Wentworth), Katherine Prudhomme-O’Brien (R-Derry), Maureen Mooney (R-Merrimack), Linda Gould (R-Bedford), Jeanine Notter (R-Merrimack), Walter Stapleton, and Senators Ruth Ward (R-Stoddard) and Regina Birdsell (R-Hampstead).
2 p.m.: buffer zone repeal
HB 430: the Sidewalk Free Speech Act, “repealing the prohibition on entering or remaining on a public way or sidewalk adjacent to a reproductive health facility.” This one has as many official sponsors as a bill is allowed to list: ten reps, five senators. Perhaps with this fifth attempt, lawmakers will finally repeal the anti-First-Amendment “buffer zone” law passed in 2014 but never enforced.
Sponsors: Reps. Niki Kelsey (R-Bedford), Hershel Nunez (R-Pelham), Tim Baxter (R-Seabrook), Linda Gould, Walter Stapleton, Maureen Mooney, Jeanine Notter, Mark Pearson, Vanessa Sheehan (R-Milford), Matt Simon (R-Littleton), and Sens. Denise Ricciardi (R-Bedford), Regina Birdsell, Gary Daniels (R-Milford), Jeb Bradley (R-Wolfeboro), and Kevin Avard (R-Nashua).
Wednesday, February 10
Zoom log-in: join any of Wednesday’s Judiciary hearings by going online to https://www.zoom.us/j/91322816360, or dialing 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 913 2281 6360.
9 a.m.: combined hearing on two bills to bar public funding of abortions
HB 434: the No Public Funds for Abortion Act. This one does what looks like a thorough job of ruling out avenues for state-level taxpayer funding of abortion, with exceptions for “abortion performed when the life of the mother is endangered by a physical disorder, physical illness, or physical injury including a life-endangering physical condition caused by or arising from the pregnancy itself.” Sponsors: Reps. Vanessa Sheehan, Maureen Mooney, Kim Rice (R-Hudson), Jim Creighton (R-Antrim), Matt Simon, Mark Pearson, Linda Gould, Debra DeSimone (R-Atkinson), Bill King (R-Milford), Diane Pauer (R-Brookline), and Senators Gary Daniels, Denise Ricciardi, and Ruth Ward.
HB 596-FN: the Life Appropriation Act, barring state funding of “convenience” abortions, including funding to agencies that perform such abortions, even if potential funding is for a non-abortion purpose. The bill would also establish a Foster Care and Adoption Initiative Fund. Sponsor: Rep. Fred Plett (R-Goffstown).
1 p.m.: born-alive infant protection
HB 233-FN: the Born-Alive Infant Protection Act. “Any born alive infant, including one born in the course of an abortion, shall be treated as a legal person under the laws of this state, with the same rights to medically appropriate and reasonable care and treatment.” Sponsors: Reps. Jordan Ulery (R-Hudson) and Walter Stapleton.
Share this information
The committee needs to get public comment before the hearings. Every sign-in counts, even without testimony attached. The tallies are going to be news, watched not only by committee members and the customary observers, but also – unless I miss my guess – by Governor Sununu.
According to an email from its “director of advocacy,” the New Hampshire Medical Society will be opposing all of these measures. That includes buffer zone repeal, which has no bearing on abortion itself and is purely a First Amendment issue. Pro-life medical professionals, take note. The Society will speak up. Will you?