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.

N.H. House to Vote on Buffer Zone Repeal January 31

The New Hampshire House is expected to vote on HB 124, the buffer zone repeal bill, at its January 31 session. The session will be live-streamed via the General Court web site.

The House Judiciary committee voted 14-4 to give the bill an “inexpedient to legislate” (ITL) report. In order for the bill to pass, the full House must overturn the committee report and then vote “ought to pass” (OTP).

Contact your state representatives as soon as possible with a brief and courteous message: please vote OTP on HB 124.

N.H. House Committee Rejects Buffer Zone Repeal Bill

On a vote of 14-4, the New Hampshire House Judiciary Committee voted “inexpedient to legislate” (ITL) today on HB 124, which seeks to repeal the buffer zone law. The full House will take up the bill at a date yet to be determined. [Update: House vote is scheduled for January 31.]

The law, written to give abortion facility managers authority to restrict public access to public areas, has never been used since its passage in 2014. Its clear incompatibility with the U.S. Supreme Court’s McCullen decision might be the reason. Only the abortion facility managers know for sure.

All Democrats on the committee were joined by Republicans Edward Gordon (R-Bristol) and Joe Alexander (R-Goffstown) in voting to kill the repeal effort. Voting against the ITL motion were Republicans Kurt Wuelper (R-Strafford), Gary Hopper (R-Weare), Barbara Griffin (R-Goffstown), and Mark McLean (R-Manchester).

“For me, it comes down to a free speech issue,” said Rep. McLean. “No clinic throughout the state has actually put [the buffer zone’s] provisions into play.”

Rep. Wuelper, the bill’s chief sponsor, told his colleagues before the vote, “[The buffer zone law’s] very intent is to restrict speech and religion in a public space based on the content of speech. [The law] hasn’t done any good in five years. It won’t do any good in 50 years.”

Not so, countered Rep. Paul Berch (D-Westmoreland). “Perhaps it’s had a salutary effect,” he said. “The facts that were present [when the law was passed] have not changed.” He’s right about that much: McCullen was present when the law was passed and it’s still binding precedent. Rep. Berch also said, “The law was drafted and passed after the Supreme Court decision [in McCullen].” He may have forgotten that the buffer zone law was drafted no later than the opening of the legislative session in January 2014, while the McCullen decision came down in June of that year.

“This is a church-state issue,” added Rep. Timothy Horrigan (D-Durham), saying he had documentation that one particular religious entity, the Catholic Church, opposed the buffer zone. “I am a Roman Catholic myself.” His one-religion claim probably comes as a surprise to people like Rev. Don Colageo of Immanuel Lutheran Church in Manchester, who has frequently led prayer vigils at an area abortion site. Further, said Rep. Horrigan, “There isn’t a First Amendment right to provide counseling or advocacy if you’re not licensed.”

The ITL motion was made by Rep. Debra Altschiller (D-Stratham) and seconded by Rep. Sandra Keans (D-Rochester.)

Bearing fruit, making progress: latest 40 Days for Life campaign concludes

A portion of this post is adapted from remarks I delivered at the closing rally for 40 Days for Life in Manchester, New Hampshire.

This has been one of those 40 Days for Life campaigns that I refuse to call a “Spring” campaign. Too darn cold and snowy. So what did we have for the closing rally? Temps in the mid-forties, and a forecast of rain. Spring rain! How good that sounded.

40 Days for Life participants in prayer
The winter/spring 2018 40 Days for Life campaign in Manchester, NH draws to a close with prayer. All photos in this post by Ellen Kolb.

I was blessed during this campaign to be able to participate in campaigns in Concord and Greenland as well as Manchester. Manchester’s sort of home base, and I’m grateful to campaign coordinator Sheila and her team. Traveling was good, though. I saw 40 Days for Life through fresh eyes as I visited different towns.

Leader of Manchester NH 40 Days for Life campaign
Sheila D. led the Manchester, NH campaign. She’s a volunteer, as are her colleagues on the leadership team.

One of the things I love about 40 Days for Life is its presence in so many cities at the same time. If I was praying at 7 a.m. in Manchester, even with just one other person, I knew we were praying and witnessing in solidarity with many other people.

We have good days – a conversation with a woman considering abortion, a “save,” maybe just a smile from a passerby – and bad days when we feel “what’s the point?” When that happens, remember that peaceful, consistent pro-life witness during 40 Days for Life is touching people not involved with the facility outside which we stand. The neighbors see us. So do the driver of the school bus rumbling down Pennacook Street, and the woman walking to the Rite-Aid on the corner, and the guy sweeping the streets. There’s no telling when or where or how peaceful witness will bear fruit.

We all know that it’s not bearing fruit at the State House at the moment. March was a discouraging month, legislatively. It would be easy for me to focus on that. Culture is about more than politics, though.

This was brought home to me at a recent hearing in Concord, where I met someone just getting started in pro-life work. At the same hearing was an old friend who’s been in the vineyard with me, so to speak, for about 30 years. The three of us got to talking. My new friend asked us if New Hampshire had made any pro-life progress over the years.

I felt like a know-it-all fifth grader. Ooh! Ooh! I know this one! I got ready to launch into a sixty-second rant about how terrible our laws are relative to the right to life. As I drew breath to start, though, my old friend said, “oh yes, definitely.” Knocked me right off my soapbox. New friend and I exclaimed at the same time, “what do you mean?”

My old friend then laid down a bit of truth that put politics in its place. “Thirty years ago, there were seven crisis pregnancy centers in the state. Now, there are 30 places, pro-life places, where women can go.”

Think about that. Thirty places. And they’re not just about crisis pregnancies, either. For example, what does every center publish on its wish list for donations? Toddler-size diapers and training pants. So much for only caring about babies until they’re born. And for moms and dads, many centers offer parenting classes and assistance with job-hunting. Some places offer housing for pregnant and parenting women who would otherwise be homeless.

Each of the 30 places began with one person seeing a need. It takes a team to open and sustain a pro-life project, but each one starts with a single person with compassion and vision. Think of that next time you’re in prayer, alone, wondering if you can make a difference. Yes, you can.

We begin laying the groundwork for the Fall campaign today. Let’s spread the news. If you have pro-life friends, if you’re in a service group or prayer circle, if you have a podcast, if you are part of any pro-life organization that needs a speaker, invite someone on the 40 Days for Life leadership team. I’m saying this without consulting any of them, but I feel safe in saying that they would welcome the chance to tell more people about what 40 Days for Life is about.

I want those team leaders to get so many speaking engagements that they can’t keep up. Let them get mad at me for putting them in that predicament. It’ll be worth it.

40dfl-fb-cover-base-copy-2

Gallery: New Hampshire March for Life 2018

A cloudy January thaw gave way to a freezing but brilliantly-sunny day for the 2018 March for Life in Concord, New Hampshire. New Hampshire Right to Life’s annual event  drew more than 300 marchers for the procession down Main Street beginning at the State House.

IMG_1739

The featured speaker at the post-march gathering was Jennifer Christie of Save the 1. She is a rape survivor and mother of a son of whom she says, “We are infinitely richer for this child being in the world.”  (Read Jennifer’s story at the Save the 1 blog.)

Jennifer Christie speaks at N.H. March for Life.
Jennifer Christie of Save the 1 speaks at NH’s March for Life.

The march route goes past the Equality Center, an abortion facility on Main Street. The city of Concord has developed over the years a way of handling the March for Life and the counter-demonstration that accompanies it: every other year, the March for Life may walk in front of the Center. Other years, the marchers must detour a block around the Center. 2018 was a Main Street year. The counter-demonstrators concealed from view  the sign near the Center’s front steps declaring “Respectful, Open, Affirming.”

I spotted a few state representatives: Reps. Glenn Cordelli, Linda Gould, Steve Negron, and Jeanine Notter.  Rep. Notter spoke to marchers about her bill on informed consent for abortion (HB 1707), which will have its committee hearing in Concord on Wednesday, January 17.  Rep. Negron spoke briefly about his campaign for the Congressional seat currently held by Ann McLane Kuster.

More from the day: