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.)

Buffer zone repeal, 2019: hearing Jan. 9

Nine New Hampshire state representatives led by Kurt Wuelper (R-Strafford) are sponsoring HB 124, a bill to repeal the state’s so-called “buffer zone” law. That law is an anti-First-Amendment measure targeting peaceful pro-life witnesses outside abortion facilities. The public hearing on HB 124 is scheduled for Wednesday, January 9, in the House Judiciary Committee at 1:00 p.m. in room 208 of the Legislative Office Building in Concord.

The committee is scheduled to vote on a recommendation to the full House regarding the bill on January 15.

Options for registering your opinion on the bill:

  • Attend the hearing. At that time you may deliver your testimony (speaking) to the committee, deliver written testimony with or without speaking, or simply sign the bill’s “blue sheet” (which will be available near the door of the committee room) to check off a box indicating support for the bill.
  • Email the committee. The Judiciary Committee page on the House web site does not currently provide a committee address, but if you email chief sponsor Rep. Wuelper at kurt.wuelper@leg.state.nh.us, he can forward your message to his colleagues. Subject line: YES on HB 124.

New Hampshire’s buffer zone law was passed in 2014, but has never been used. It authorizes abortion facility managers to determine where and when peaceful pro-life witnesses may occupy public property near abortion facilities. Maggie Hassan, then serving as Governor, signed the law despite the fact that the U.S. Supreme Court had only days before ruled a similar Massachusetts law to be unconstitutional (McCullen v. Coakley).

For background, you can consult the dedicated page compiling this blog’s reports on the buffer zone issue.


Text of HB 124 as introduced:

AN ACT repealing the law relative to the buffer zones to reproductive health care facilities.

1. Statement of Findings and Purpose.
I. The general court hereby finds that:

(a) The exercise of a person’s right to free speech is a First Amendment activity, the protection of which is paramount.

(b) RSA 132:37 through RSA 132:40 (2014, 81) would infringe on the free speech rights of innocent people.

(c) RSA 132:37 through RSA 132:40 (2014, 81), if implemented would be subject to immediate constitutional challenge.

(d) RSA 132:37 through RSA 132:40 (2014, 81) has served no public purpose.

II. Therefore, the general court hereby repeals RSA 132:37 through RSA 132:40 because if left as law, this statute will cause the state of New Hampshire to expend considerable sums defending a law which the United States Supreme Court may find unconstitutional and which has served no public purpose.

2 Repeal. RSA 132:37-132:40, relative to access to reproductive health care facilities, are repealed.

3 Effective Date. This act shall take effect upon its passage.

 

A fiscal reason for repealing N.H.’s buffer zone law

Photo by Beth Scaer

Two years ago, I noted that the state of Massachusetts had agreed on behalf of the state’s taxpayers to pay $1.24 million dollars to the attorneys for the plaintiffs in McCullen v. Coakley, the case in which the U.S. Supreme Court voted unanimously to throw out Massachusetts’ original buffer zone law.

At that time, I asked a question.

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?

I wouldn’t have guessed when I wrote those words that they’d still be apt today, as 2016 draws to a close.

In a few weeks, legislators will have their third opportunity to repeal the law and end the prospect of billing the taxpayers for defending it. An LSR (bill proposal) has already been filed by multiple sponsors.

The New Hampshire legislature failed in 2015 and 2016 to repeal New Hampshire’s buffer zone law. Like the scrapped Massachusetts law on which it was based, New Hampshire’s law was enacted with First Amendment restrictions without any documentation that less-restrictive means had been tried in order to control activity around abortion facilities.

With Granite State ingenuity, though, abortion providers have come up with a way around litigation: no abortion facility has chosen to post a zone. So much for claims that zones were necessary to protect patient safety. A federal judge turned away a challenge to the law by peaceful pro-life witnesses, ruling that since the New Hampshire law hadn’t actually been used against anyone, there was no case to decide.

Those plaintiffs have asked the First Circuit Court of Appeals to keep the challenge open. Litigation is going on even though buffer zone fans might wish otherwise.

Giving abortion providers the right to set “zones” within which the First Amendment is suspended does not protect anyone from violence or intimidation.

Calling the New Hampshire law “narrowly tailored” (lookin’ at you, Governor Hassan) doesn’t make it so. Chief Justice Roberts’s words in McCullen strike uncomfortably close to home. [Emphasis added.}

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.

New Hampshire’s law protects no one, is unenforced, and could become very expensive in court. Take it off the books.

Notes from the latest buffer zone repeal hearing

Michael Tierney and Joan Espinola (standing) wait to testify on HB 1570. (photo by Ellen Kolb)
Michael Tierney and Joan Espinola (standing) wait to testify on HB 1570. (photo by Ellen Kolb)

The New Hampshire Senate Health and Human Services committee had to change rooms twice yesterday to find a place with enough seats for the public. About 40 minutes past its scheduled time, the hearing on HB 1570 began, and buffer zone repeal was up for discussion. Will New Hampshire continue to have a law on the books that allows abortion facility operators to determine where and when First Amendment rights may be exercised on public property?

Committee members kept their questions to a minimum, no doubt mindful of the clock. No vote was taken yesterday; action is likely to come soon. There will be a few days’ notice before any Senate floor vote.

In brief, the hearing produced nothing new or shocking. Any information or persuasion that’s going to budge a senator is going to come from private communication. Remember, repeal was tabled after a tie vote in the Senate last year – and remember who voted how.


 


Here are some notes on this week’s hearing, with my thanks to Jennifer Robidoux who shared her own notes with me after I had to leave the hearing early. This does not mention everyone who testified.

  • Committee members present were Andy Sanborn (R-Bedford), Kevin Avard (R-Nashua), Sharon Carson (R-Londonderry), and Martha Fuller Clark (D-Portsmouth). Committee member Molly Kelly (D-Harrisville) was absent.  If you wish to contact the committee members to let them know it’s time to pass HB 1570 and get rid of the buffer zone, you should do so soon. Contact information is on the Senate web page. If you send an email, put “yes on HB 1570” or something similar in the subject line.
  • There was no organized demonstration of any kind outside the hearing.
  • There was no testimony from any municipal or law enforcement official.
  • The recent dismissal of the Reddy v. Foster case was mentioned by nearly everyone who testified. Interpretations varied.
  • Rep. J.R. Hoell, chief sponsor of the repeal bill, reminded the senators that the House has voted twice for repeal (2015 and 2016). He said the situation of having an unenforced law like the buffer zone on the books was “silliness at best.”
  • Cathy Kelley, who is outside Planned Parenthood in Manchester every Thursday and who founded Pennacook Pregnancy Center, supported repeal. She defended her right to pray and to talk to people outside PP. She spoke of offering healing after abortion. “That’s compassion. That’s what we’re about.” Sue Clifton testified for repeal as well, remarking on ministry to abortion workers. “We pray for abortion workers. We love them all and we are there to offer help.”
  • Joan Espinola, a plaintiff in Reddy v. Foster, cited both the U.S. and New Hampshire Constitutions to argue for her freedom to be peacefully present outside abortion facilities. “we’re not out to harm anyone….The Constitution doesn’t give protection from unwanted speech.”
  • Fellow plaintiff Jennifer Robidoux pointed out that she is already “buffered” from abortion facility clients by private property (e.g. the stockade fence at the Pennacook Street Planned Parenthood); “this law buffers me from public property.”
  • Two state representatives strongly opposed to repeal made the claim that any zones, should they be enforced, would respect “local control.” (I have already held forth at some length on that point.)
  • Attorney MIchael Tierney, who represented plaintiffs in Reddy v. Foster, told the committee that there are already laws on the books against harassment, blockade, and violence.  About that: I’m sure I’m not the only person who wonders why abortion facility managers don’t call on police to enforce those laws – assuming those laws are being violated.
  • Senator Donna Soucy (D-Manchester), as she has done since introducing the buffer zone bill in 2014,  claimed repeatedly that the New Hampshire buffer zone law is substantively different from the Massachusetts law struck down by the U.S. Supreme Court in McCullen v. Coakley, in that the old Massachusetts law set a firm 35-foot zone while the New Hampshire law allows a zone “up to 25 feet.” Senator Soucy makes this claim despite the fact that the Supreme Court did not use zone size as a factor in striking down the Massachusetts law.
  • The our-law-is-different-from-Massachusetts claim was also made to the committee by the representative of Planned Parenthood New Hampshire Action Fund, Kayla McCarthy. She cited an increased “volume” of protests without giving any details, which she might have submitted to the committee in writing.
  • The New Hampshire Medical Society registered its opposition to buffer zone repeal. So did the New Hampshire Public Health Association, whose spokesman said that the buffer zone law “does not impede protesting in a respectful manner.”

A reminder of what “local control” once meant to buffer zone advocates

The New Hampshire Senate Health and Human Services committee held a hearing on HB 1570 this afternoon. That’s the buffer zone repeal bill, and I’ll have a longer report later. For now, I’ll tell you what went on today that would have had me yelling at the committee if not for the restraining memory of the gentle teachings of my youth.

What was claimed today

Two state representatives who have supported the buffer zone from its days as a bill are Janet Wall and Timothy Horrigan, both Democrats from Strafford County district 6 (Durham and Madbury). Reps. Wall and Horrigan both testified against repeal at today’s hearing. Both were members of the House Judiciary Committee in 2014 when the buffer zone bill had its House committee hearing.

Representative Horrigan told senators at today’s hearing that buffer zones “have to be approved by municipal government.”

Representative Wall told the senators that the buffer zone law was written to be “consistent with local control. Current [buffer zone law] allows communities to determine what’s best for them.”


The problem with those claims is that the House committee on which both Horrigan and Wall served in 2014 refused to give municipalities a substantive rather than advisory role in the establishment of zones.

The fate of “local control” when the buffer zone bill was under consideration

I was present at the hearings when the buffer zone bill was under consideration in 2014. I attended the House Judiciary Committee’s executive session on the bill in May 2014. This is what transpired, according to the post I made just after that executive session. Note the remarks made by Reps. Wall and Horrigan.

Rep. Robert Rowe (R-Amherst) attempted to introduce an amendment to require that abutters be notified before imposition of a buffer zone and that there be a public hearing with the planning board to review the site plan in conjunction with law enforcement and public works representatives. That launched an illuminating if sobering discussion of what abortion advocates think of things like transparency, notice and hearings.

Rep. Janet Wall was concerned that the planning board “adds another layer to the process.” Rowe replied, “I did this not to add layers but to bring fairness to the process. I’m not trying to establish a roadblock.” Wall said, “Some people could interpret it that way.”

Rep. Paul Berch (D-Westmoreland) was blunter. “This would give municipalities veto power.”…

Rep. Charlene Takesian (R-Pelham) agreed with Berch. “I thought we were trying to set a state standard. Rep. Rowe’s amendment would give too much local control.” Durham’s Rep. Timothy Horrigan agreed. “This might give a planning board veto power. Don’t give a local board the power to override state statute.” From Rep. David Woodbury: this offers municipalities the chance “to make mischief.” Rep. Sylvia Gale, who said at last week’s executive session that she has been a patient “escort” at abortion facilities, warned that hearings and notice might allow people to “hijack the process.”

I was as distressed then as I was today at the willingness of legislators to delegate to private, unelected, unaccountable business entities the right to determine whether and when the public may occupy public property.

Here’s what the law says: “Prior to posting the signage [setting up a buffer zone] a reproductive health care facility shall consult with local law enforcement and those local authorities with responsibilities specific to the approval of locations and size of the signs to ensure compliance with local ordinances.” Note that word “consult.” No public hearings. No public notice. No municipality may prevent an abortion facility from establishing  a First-Amendment-free zone on public property; it may merely be “consulted” about the location and size of the signs demarcating the zone.

Long live local control.