Undermining the First Amendment in the name of “Health Care”

Short memories make for bad public policy. I can’t help but reflect on that.

As I write this, Congress is about to take a vote on doing something-or-another with Obamacare: repeal, replace, whatever. I’m not sure they know what they’re doing, despite good intentions all around. In all the tinkering, I am not hearing much from Members of Congress about what made the “Affordable Care Act” utterly unacceptable to so many Catholics, including me: the contraceptive mandate. Continue reading “Undermining the First Amendment in the name of “Health Care””

House refuses to repeal buffer zone law

The New Hampshire House has given thumbs-down to repealing the state’s unenforced buffer zone law, rejecting HB 589 with a 191-165 “inexpedient to legislate” (ITL) vote.

This is the third unsuccessful attempt to repeal 2014’s buffer zone law, which gives abortion providers the ability to prohibit exercise of First Amendment rights on public property near their facilities. Last year’s repeal attempt was passed by the House before dying in the Senate.

New Hampshire’s law is similar to the Massachusetts law struck down by the U.S. Supreme Court in McCullen v. Coakley.

Before the vote on HB 589, Reps. Jeanine Notter, Kurt Wuelper, and Dan Hynes spoke in favor of the repeal bill. I’m proud that two of them represent my town.


Here is the link to the roll call on HB 589. Keep in mind that the motion was ITL, so a “yea” vote favored killing the repeal effort. The “nays” came from reps who presumably don’t want to deny First Amendment rights to peaceful pro-life witnesses.

Among the 165 representatives who opposed killing the repeal bill were four non-Republicans. I tip my cap to Democrats Amanda Bouldin, Raymond Gagnon, and Jean Jeudy for being willing to take a position at variance with that of their party’s leaders. Libertarian Caleb Dyer cast a pro-First-Amendment vote, too.

Most of the 191 votes to kill the repeal effort came from Democrats, but 34 Republicans lined up behind them.

This week’s hearings, part 2: buffer zone repeal

“The cloud of litigation has been cleared,” according to Senator Donna Soucy, in a letter from her to the New Hampshire House Judiciary Committee. Rep. Karen Ebel read the senator’s letter into the record during a February 1  hearing on repeal of the buffer zone law, of which Soucy was the prime sponsor in 2014.

The litigation of which Soucy wrote is Reddy v. Foster. She considers it “cleared” because of the recent First Circuit Court of Appeals affirmation that challenges to the buffer zone law are premature since the law has not yet been enforced.

No pro-life witnesses standing or walking peacefully outside an abortion facility in New Hampshire have been arrested or cited under the buffer zone law, and that clears the way to enforcing the law. Got that?

“We will begin to work with police and law enforcement”

Senator Soucy’s letter was in opposition to HB 589, the third repeal attempt to be introduced since the law was signed. The testimony on both sides was familiar to anyone who has attended hearings on the earlier repeal efforts. One thing was new: the hints from Senator Soucy and Planned Parenthood Action Fund lobbyist Kayla Montgomery that the zones are on the way – since, after all, “the cloud of litigation has been cleared.”

In response to Rep. Claire Rouillard’s question about whether zones had been posted outside any abortion facilities yet, Montgomery replied, “We will begin to work with police and law enforcement to see what’s best for each community.”

That’s a grim hoot. Regardless of anything police might say, neither they or any other municipal or state authority can prevent an abortion facility manager from posting a buffer zone, within which First Amendment rights on public property are abrogated. The law delegates that right to the abortion facility.

When the buffer zone law was still a bill and got its executive session in front of this Judiciary committee, then-Rep. Robert Rowe suggested to his colleagues that the bill include a provision for, at a minimum, some kind of public hearing before a zone could go up. His colleagues rejected the idea so firmly that Rowe didn’t even bring forward a formal motion. “Too much local control,” said one Judiciary member who has since left the House.  “Don’t give a local board the power to override state statute,” said Rep. Timothy Horrigan at the time; he is still on Judiciary.

So go ahead, law enforcement officials, and let yourself be worked with. Just please don’t kid yourself that you play a substantive role in the creation of the zones you’ll be called upon to enforce.


PP greeter describes frightening incident; were police called?

At this week’s hearing, a volunteer greeter from Planned Parenthood in Manchester testified against repeal. She made it clear she was testifying for herself, not for PPNNE. She described an unsettling incident where she witnessed a client surrounded and blocked by what she called pro-life protesters, temporarily preventing the client from entering the building. Scary, no doubt – at least that’s how I’d feel in such a situation. I’d call the cops.

Was that done in the situation described by the greeter? She had witnessed a blockade – a citable offense, however brief – and she was concerned for the patients’ safety. She must have known that PP’s Manchester office has cameras trained on the sidewalk, possibly capturing the incident and making prosecution easier. So were the police called?

She didn’t say.

Massachusetts abortion providers learned the hard way what happens when buffer zone laws are imposed before existing laws against harassment, disorderly conduct, or criminal threatening are enforced.

I am sure that the greeter who testified wasn’t making up the story. As I listened to her, though, it occurred to me that in some contexts, where a person is being threatened with harm, someone who sees that and fails to report it to authorities is subject to prosecution. This is certainly the case where children and vulnerable elders are concerned. Healthy, unimpaired adults don’t get the same protection, since the law assumes such adults can call for help themselves.

I am left wondering why any New Hampshire health care provider, or an agent of that provider, who believes clients are being threatened does not call police to deal with the threat.

Video, and the fear of it

The PP greeter said she recently saw someone she identified as a pro-lifer on the sidewalk wearing a webcam. That scared her. She’s worried about privacy. She doesn’t want herself or PP’s clients or employees being shown on someone else’s social media.

I understand her concern. There are two ways of looking at video, though. She saw the webcam as a threat, something offensive. There were other cameras present she didn’t talk about, mounted on the PP building in Manchester. Did she see those as a threat to privacy? Not likely. She probably considers them a defensive measure.

Rep. Kathy Souza reminded the committee at the hearing that Manchester’s PP has those sidewalk cameras, and video of sidewalk activity is available to legislators and law enforcement officials.

Have the committee members seen any such videos? Will they seek them out or consider them relevant? We don’t know.

Since the passage of the buffer zone law, I’ve participated in 40 Days for Life campaigns at various locations. I never come to a vigil without a camera of some kind, usually the one on my phone. I have it as a defensive measure. I often keep vigil alone during 40DFL (which is a terrible idea, but that’s one consequence of taking the 7 a.m. shift). If there is any incident on the public sidewalk that threatens me or appears to be threatening anyone else, I am going to do two things: call 911, and use the camera to document whatever I can.  A commitment to nonviolence doesn’t equate to a commitment to leave my phone and its camera at home.

To me, that’s playing defense. To any person whose actions I might document, it would look like offense.

Was defense the reason why the man spotted by the greeter was wearing a webcam? I don’t know, and neither does she.  If he were to be a person whose camera was meant as a tool of intimidation and invasion of privacy, no buffer zone law would deter him. He’d just step out of the zone (“up to” 25 feet away, per the law) and invest in a zoom lens, and keep right on filming – until someone calls the police to enforce existing laws against harassment and threatening.

Which brings us back to buffer zone repeal. The purported need for a New Hampshire buffer zone law was and is unsupported by any law enforcement records from recent years. Peaceful pro-life witnesses have not drawn attention from law enforcement – and anyone determined to commit violence is not going to be deterred by the presence or absence of a few signs.

That’s just as sobering a thought for the people on the sidewalks as it is for the people using the “buffered” facilities.

What would genuine concern for safety look like?

Can the state of New Hampshire delegate to private entities the right to control First Amendment activities on public sidewalks and rights-of-way?

The buffer zone law does not require those private entities – the abortion providers – to prove any danger or threat before posting a zone. Providers could post one simply because they don’t like the presence of silent pro-life demonstrators or peaceful sidewalk counselors.

That’s how we know that the buffer zone law is not about protecting anyone’s safety.

An abortion provider concerned about patient safety would call law enforcement without hesitation, with or without a buffer zone in place, anytime a patient expressed fear about sidewalk activity. (Such a provider would also welcome more scrutiny from public health officials, but that’s another story.) That hasn’t been happening.

The sponsors of this year’s buffer zone repeal bill know this. They are doing their best to make the case that protecting people in and around abortion facilities is going to mean enforcing laws that were in place long before Senator Soucy started buffering things.

N.H. 1st Congressional District: remembering a Shea-Porter letter

Congressional candidate Frank Guinta speaks with 40 Days for Life coordinator Jennifer Robidoux
Congressional candidate Frank Guinta speaks with 40 Days for Life coordinator Jennifer Robidoux

In New Hampshire’s First Congressional district, incumbent Frank Guinta is facing former Member of Congress Carol Shea-Porter. This is the fourth time the two have gone head-to-head for the seat, with Shea-Porter holding a 2-1 edge.

Looking strictly at his pro-life record, Guinta has voted to keep taxpayers out of the abortion industry’s business, with exceptions for pregnancies resulting from rape and incest (Hyde Amendment language). The National Right to Life Committee has endorsed him. On his campaign web site, he writes “I believe in the sanctity of life and will work to make sure all children have the ability to grow up surrounded by their parents’ loving attention.”

Congresswoman Carol Shea-Porter (D-NH1). Facebook photo.
Congresswoman Carol Shea-Porter (D-NH1). Facebook photo.

Then there’s Carol Shea-Porter. She’s an EMILY’s List favorite, which speaks volumes. And in 2013, refusing to vote to weaken the Obamacare HHS/contraceptive mandate, she was willing to let the government shut down instead.

Recall her letter to  me from 2013, which stands up pretty well as a guide to her attitude towards religious liberty and what constitutes health care. The subject was the potential government “shutdown,” her support for Obamacare, and her insistence on defending its provision that women are broken and need to be fixed via “preventive” contraceptive converage. She had (has?) no problem forcing employers who provide health insurance to employees to be involved in those employees’ decisions regarding contraception.


From the 2013 post, with excerpts from Shea-Porter’s letter set off in quotation marks:

Here’s the relevant portion of her message. I’ve added some bold-face emphasis.

“Last weekend, the House of Representatives voted on a Continuing Resolution that contained multiple provisions that had nothing to do with keeping the government operational. That version of the bill, which I voted against on September 29th, included a provision that would allow any employer or insurer to refuse to cover any health care services they might object to.  This would give unprecedented control over personal healthcare decisions to employers and insurers, allowing them to deny coverage for important women’s preventive health services, including HPV testing to prevent cervical cancer, domestic violence screening and counseling, and birth control.”

Like the president whose water she’s carrying, she conceded no good will to people like me who see the down side of the “Affordable” Care Act. That makes her next sentence a punch line, albeit a lousy one.

“I stand ready to work with my Republican and Democratic colleagues on finding common ground and getting things moving here in Washington.” 

I guess the First Amendment doesn’t qualify as common ground.

…In Shea-Porter’s view, it’s imperative that employers with religious objections to contraception be forced to subsidize it anyway. She thinks that affording such people freedom of conscience would amount to “unprecedented control” over a woman’s health care decisions.

Forcing an employer to pay for birth control pills is an “unprecedented control” of its own.

I take from this that Shea-Porter believes free pills must somehow trump religious liberty. Perhaps I take too dim a view.  HHS Secretary Sebelius, when asked about the HHS mandate last year, couldn’t square it with religious liberty beyond saying, “I’m not a lawyer and I don’t pretend to understand the nuances of the constitutional balancing tests.” Madam Secretary is apparently not the only Washington denizen who has trouble with nuance. The difference between health care and health coverage, between choice and mandate, between cancer screening and fertility suppression: all are lost on my congressional representative.

One more thing: if Carol Shea-Porter wins in 2016, she’ll be entitled to a lifetime Congressional pension at her own option once she’s halfway through her term. That seems odd recompense for her support of the HHS mandate.

(Photo credit: visitthecapitol.gov)

Alito: “those who value religious freedom have cause for great concern”

In declining to hear a case about conscience rights, a decision coinciding with Fortnight for Freedom, the U. S. Supreme Court just underscored the vulnerability of professionals who refuse in the course of their work to participate in ending human life.

The case involved pharmacists in Washington state who challenged a rule by the Washington Board of Pharmacy. Americans United for Life issued a recent statement summarizing the case.

The U.S. Supreme Court [on June 28, 2016] declined an opportunity to hear Stormans v. Wiesman, a challenge to a 2007 Washington Board of Pharmacy rule that punishes pharmacists and pharmacy owners with religious objections to stocking drugs with known life-ending effects. “Despite this missed opportunity to correct an unconstitutional abuse of power, the Washington State rule that punishes pharmacists and pharmacy owners who respect unborn life can and should be immediately repealed,” said Clarke Forsythe, AUL Acting President and Senior Counsel.

“The rule at issue in the Stormans case is unfortunately one of many examples where abortion advocates are pushing an extreme agenda of coercion under the faulty guise of ‘choice.’  As AUL has written about extensively, Planned Parenthood’s fingerprints are all over the unnecessary and unconstitutional rule,” continued Forsythe.

Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito disagreed with their colleagues who voted not to hear the Stormans appeal. As this year’s Fortnight for Freedom comes to a close, the words of Alito’s dissent are timely.

I would [hear the case] to ensure that Washington’s novel and concededly unnecessary burden on religious objectors does not trample on fundamental rights….

This case is an ominous sign. At issue are Washington State regulations that are likely to make a pharmacist unemployable if he or she objects on religious grounds to dispensing certain prescription medications. There are strong reasons to doubt whether the regulations were adopted for—or that they actually serve—any legitimate purpose. And there is much evidence that the impetus for the adoption of the regulations was hostility to pharmacists whose religious beliefs regarding abortion and contraception are out of step with prevailing opinion in the State. Yet the Ninth Circuit held that the regulations do not violate the First Amendment, and this Court does not deem the case worthy of our time. If this is a sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have cause for great concern.