On April 18, attorneys for the plaintiffs in Reddy v. Foster filed notice of appeal to the United States Court of Appeals, First Circuit, asking that the recent dismissal of the case by a lower court be set aside. Briefs and arguments for the appeal are still months away.
In Reddy, seven pro-life plaintiffs challenged the constitutionality of New Hampshire’s buffer zone law, which authorizes abortion providers to prohibit peaceful pro-life witness outside abortion facilities. Federal Court Judge Joseph Laplante recently dismissed the case, ruling that plaintiffs did not have standing to sue since no abortion provider had yet posted a zone.
Even with the dismissal of the lawsuit, peaceful pro-life witness outside New Hampshire abortion facilities without posted buffer zones remains protected under the First Amendment. If you see a zone posted, please note the location and send me a message at firstname.lastname@example.org.
The New Hampshire Union Leader on July 24 carried an op-ed written by an American Civil Liberties Union of New Hampshire attorney and an intern. The topic was free speech, particularly where displays of signs (political and otherwise) are concerned. The op-ed celebrated the judicial determination that while content-neutral regulation is permissible, content-based regulation amounts to censorship and is a no-no. Feast on this paragraph, wherein the writers speculate on what could happen if content-based censorship were allowed.
Just think about it. Government officials who want to censor certain categories of speech could simply hide these nefarious motives behind seemingly neutral justifications (i.e.public safety, preventing crime, etc.) and voila, the law would now no longer be content based.
The op-ed goes on to explain that ACLU-NH is actively opposing New Hampshire’s “ballot selfie” law, making it illegal to post to social media a photo of a marked ballot, including one’s own. It’s a ridiculous law, it certainly looks like content-based speech regulation, and ACLU is on the side of the angels in that fight.
So why did the ACLU send representatives to lobby for New Hampshire’s buffer zone law and then to lobby against its repeal? Apply the op-ed excerpt above to that law, which was so unconstitutional on its face that a federal judge issued a still-standing injunction pending a trial on a lawsuit.
Unlike restrictions on pro-life public witness that have been found constitutional (if odious) in other states, New Hampshire’s law – if it were allowed to go into effect – would give abortion facility managers the power to bar public access to public sidewalks, regardless of a person’s reason for occupying the sidewalk. The abortion facility managers would have sole authority to determine the size, placement, and hours of enforcement of the “buffer” area.
As the ACLU writers pointed out in their op-ed, “Just think about it. Government officials who want to censor certain categories of speech could simply hide these nefarious motives behind seemingly neutral justifications (i.e. public safety…)…”
Or legislators determined to eradicate public pro-life witness at all costs could just give carte blanche to abortion providers. When the law was in a House committee, there was a motion to give municipalities more than an advisory role in the establishment of buffer zones. The motion was defeated.
And ACLU-NH was okay with that.
If free speech is good for ballot selfies, it’s good for peaceful pro-life witness. The ACLU defends the First Amendment in the former case. It has good reason to defend it in the latter case as well.
The state of Massachusetts must pay the attorneys for plaintiffs in its buffer zone case $1.24 million, under terms of a settlement agreement. This has implications for New Hampshire’s buffer zone law, modeled on the Massachusetts law struck down in June by the U.S. Supreme Court.
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?
A reliable source has given me the details of the settlement agreement, which was approved by the U.S. District Court for the District of Massachusetts on December 15, 2014. The State of Massachusetts has 90 days to make the payments totaling $1.24 million.
Eleanor McCullen and six other plaintiffs filed suit in 2008 challenging the constitutionality of Massachusetts’ buffer zone law on First Amendment grounds. In June 2014, the U.S. Supreme Court agreed that a law restricting First Amendment rights outside abortion facilities could not be upheld before the state first enforced less drastic remedies. This parallels the New Hampshire law, which was signed by Governor Maggie Hassan after the Supreme Court ruled in the McCullen case. Operators of New Hampshire abortion facilities were unable to produce any recent police records about peaceful pro-life witnesses violating any law by praying outside facilities.
Seven Massachusetts plaintiffs prevailed, and now Massachusetts reportedly owes their attorneys more than a million dollars. New Hampshire’s law is being challenged by seven plaintiffs, too. How much will our state owe their attorneys before giving up on the law?
The New Hampshire case, Reddy v. Foster, has been in a strange place ever since Sister Mary Rose Reddy and her fellow plaintiffs brought suit. A federal district court judge issued a temporary restraining order against enforcement of the law. Attorney General Joseph Foster, who is supposed to defend the law, agreed not to enforce it for now. Abortion providers agreed not to put up “buffer zone” signs at their facilities. The state holds that since the law isn’t being enforced, the plaintiffs have no case. The judge has yet to rule on that issue.
Perhaps the judge is waiting for January, when the legislature will have a buffer zone repeal bill to consider, filed by Rep. Kathy Souza (R-Manchester). Once the law is repealed, the case will go away.
Instead of being strictly a “social” issue, the buffer zone law is now a fiscal concern. Let’s see how many New Hampshire legislators want to pay – or rather, make YOU pay – to keep the law in place.
(Edited to add names accidentally omitted from original post)
Readers have asked for a list of who voted for New Hampshire’s awful “buffer zone” law this year. Others have asked for a more comprehensive guide to votes on the life issues over the past two years. First things first: here are the supporters of SB319, the anti-free-speech “buffer” bill. This does not reflect how a challenger might vote on such a bill. This list includes only people who actually voted in favor of the bill AND are running for re-election in 2014.
You can always look up votes on the legislative web site. You can look up your district here; House and Senate have differently numbered districts, and you might be in more than one House district due to “floterial” seats.
SB 319 vote, by county, for reps running for re-election
Note: Governor Maggie Hassan signed the buffer zone bill on June 10, despite the U.S. Supreme Court decision striking down the similar law from Massachusetts.
Senate: voted to limit peaceful pro-life speech
Jeff Woodburn, D-Dalton (district 1)
Jeb Bradley, R-Wolfeboro (district 3, co-sponsor)
David Watters, D-Dover (district 4)
David Pierce, D-Lebanon (district 5)
Andrew Hosmer, D-Laconia (district 7)
candidate Rep. Linda Tanner, D-Georges Mills (district 8; voted in favor of bill as a House member)
Molly Kelly, D-Keene (district 10)
Peggy Gilmour, D-Hollis (district 12)
Bette Lasky, D-Nashua (district 13)
Donna Soucy, D-Manchester (district 18, chief sponsor)
candidate Rep. Donna Schlachman, D-Exeter (district 23; voted in favor of bill as a House member)
Nancy Stiles, R-Hampton (district 24, co-sponsor)
Note that Sen. John Reagan (R-Deerfield, district 17) voted in favor of the bill the first time it came to the Senate but against it when it came back to the Senate with a House amendment. His more recent vote is consistent with the majority of his votes on other life issues. I recommend that voters in District 17 contact the Senator directly if they have any concerns about his position.
House, Belknap County: voted to limit peaceful pro-life speech
Ruth Gulick (D), district 1, Center Harbor & New Hampton
Lisa DiMartino (D), district 2, Gilford & Meredith
David Huot (D), district 3, Laconia wards 1-6
Ian Raymond (D), district 4, Sanbornton & Tilton
House, Carroll County: voted to limit peaceful pro-life speech
Tom Buco (D), district 2, Chatham, Conway, Eaton & Hale’s Location
Syndi White (D), district 2
Susan Ticehurst (D), district 3, Albany, Freedom, Madison & Tamworth
Tom Lavender (D), district 5, Brookfield, Effingham, Ossipee & Wakefield
Edward A. Butler (D), district 7, floterial: Albany, Bartlett, Chatham, Conway, Eaton, Freedom, Hale’s Location, Hart’s Location, Jackson, Madison, Tamworth
House, Cheshire County: voted to limit peaceful pro-life speech
Paul Berch (D), district 1, Chesterfield, Hinsdale, Walpole & Westmoreland
Tara Sad (D), district 1
Lucy Weber (D), district 1
John E. Mann (D), district 2, Alstead, Marlow & Surry
Daniel Eaton (D), district 3, Gilsum, Nelson, Stoddard & Sullivan
Timothy N. Robertson (D), district 6, Keene ward 3
Cynthia Chase (D), district 8, Keene ward 5
Richard Ames (D), district 9, Dublin, Harrisville, Jaffrey & Roxbury
Marge Shepardson (D), district 10, Marlborough & Troy
Bruce Tatro (D), district 15, floterial: Marlborough, Richmond, Swanzey, Troy & Winchester
Larry Phillips (D), district 16, floterial: Keene wards 1-5
Kris E. Roberts (D), district 16
House, Coos County: voted to limit peaceful pro-life speech
U.S. District Judge Joseph Laplante has ordered that New Hampshire’s new “buffer zone” law not be enforced against peaceful pro-life witnesses outside abortion facilities until further notice. The judge’s order, dated July 23, followed a telephone conference with representatives of all parties to a lawsuit filed earlier this month seeking to block the law.
Laplante’s order cancelled the scheduled July 25 preliminary-injunction hearing on the new law. He has requested that all parties to the lawsuit jointly file a status report within 60 days to advise the court of any “legislative, executive, judicial or factual” developments relevant to the lawsuit.
The judge’s order means that even if an abortion facility puts ups “patient safety zone” signs in an attempt to block peaceful demonstrators, the law will not be enforced for now. Laplante wrote that any defendant learning about an abortion facility’s plan to post such signs must give immediate notice to plaintiffs’ attorneys and to the court. Such a move would trigger a rescheduled preliminary-injunction hearing.
Seven pro-life activists are challenging the buffer zones. Defendants include Attorney General Joseph Foster, five county attorneys, and five municipalities.
In a court filing prior to Judge Laplante’s order, Attorney General Foster argued that since no zones have been posted yet and therefore no enforcement has taken place, the seven plaintiffs have nothing to complain about. Foster has expressed confidence that the New Hampshire law is different from the Massachusetts buffer zone law recently rejected by the U.S. Supreme Court.
That sounds like “we have a law, and I’m happy to defend the law, but we’re not enforcing the law, so make this case go away.”
Can the law be repealed within 60 days? Not without a special session of the legislature. With House leaders who favor restrictions on pro-life speech (including silent prayer), forget any special session. What WILL happen within 60 days is a primary election, involving many legislators who voted on the buffer-zone bill. That’ll help set the stage for the next legislative session in 2015, when perhaps the First Amendment will fare better.