Analysis, reaction: Does the Supreme Court ruling render NH’s ‘buffer zone’ law DOA?

CONCORD — A U.S. Supreme Court decision unanimously striking down a Massachusetts law keeping protesters at least 35 feet from clinics where abortions are performed has thrown into question the validity of a similar New Hampshire measure signed into law two weeks ago.

 

The justices, although split on the scope of their basic finding, agreed the Bay State law was a violation of the First Amendment right to free speech.

 

It was a closely watched case in New Hampshire, where Gov. Maggie Hassan signed into Senate Bill 319, creating a 25-foot “buffer zone” around Granite State clinics on June 10. The law is scheduled to go into effect on July 10.

 

Proponents had argued the Granite State bill, now law, is narrower than the Massachusetts law, but could be adjusted if it were found to be invalidated by a high court’s ruling in the Bay State case.

 

Hassan said Thursday:

 

“Women should be able to safely access health care and family planning services, and the bipartisan legislation that I signed earlier this month was narrowly tailored, with input from the law enforcement community and municipal officials, to ensure the safety and privacy of patients and the public, while also protecting the right to free speech.

 

“New Hampshire’s law is different than Massachusetts’, but we will closely review today’s decision to determine its impact, if any, on our state,” Hassan said.

 

The chief sponsor of Senate Bill 319, Manchester Democratic Sen. Donna Soucy, expressed similar sentiments:

 

“I will carefully review today’s decision issued by the U.S. Supreme Court to determine the impact, if any, on New Hampshire’s recently enacted law. I am thankful for the bipartisan work of my colleagues in the Legislature, that cautiously crafted a narrow law which is more limited than the Massachusetts’ law at issue in the decision. I continue to believe that women should be able to access critical health care services without fearing for their safety and will continue to work to ensure their safety while carefully balancing free speech rights.”

 

But state Sen. Lou D’Allesandro, a Manchester Democrat and cosponsor of Senate Bill 319, said, “No matter how you look at it, it’s a blow. The New Hampshire law is a little different situation, but the basic premise is unconstitutional in nature, and that resonates. That’s the key ingredient.”

 

Meanwhile, Associate Attorney General Anne Edwards said::

 

“We have an attorney reviewing both the decision and the new law to determine any impact on the new law. We will be advising the Governor’s office once our review is complete.”

 

Anti-abortion activists praised the decision and insisted it clearly invalidates the Granite State law. A swift court challenge to the New Hampshire law is almost certain, probably before the effective date.

 

Republican candidate for governor Andrew Hemingway, who is staunchly pro-life, said:

 

“This is a victory for the First Amendment. This is a victory for the right to free assembly and the right to free speech. This court unanimously put aside any political preferences on the issue of abortion and acknowledged this is simply a matter of the First Amendment — something Maggie Hassan refused to recognize in her zeal to protect abortion providers, which is one protection not covered in the Constitution.

 

“This is yet another example of Governor Hassan’s extreme ideology trampling on the Constitution to advance her personal political agenda.”

 

The other GOP candidate for governor, Walt Havenstein, who described himself as pro-choice, said, “This is a victory for the First Amendment and I agree with the Supreme Court.  The case shows how unwise it is to sign laws which infringe upon the Constitution.”

 

State Sen. David Boutin, who strongly opposed the New Hampshire law, said, “The Supreme Court made the right decision.”

 

Boutin was in the minority when the state Senate passed Senate Bill 319 by a vote of 15-9 in February. And, after the Housed passed the bill with an amendment in May on a 162-100 roll call, the Senate concurred on a 13-10 vote, sending the bill to Hassan, who signed it during a ceremony attended by a large group of supporters.

 

Hooksett Republican Boutin faces a party primary challenge from Rep. Jane Cormier, who had also opposed the bill.
He said, “This case was about the people’s right of free speech and free assembly. The Supreme Court has validated those rights and invalidated the government’s effort to try to dampen those rights.”

 

“It’s a good day for New Hampshire,” said Boutin, who said he warned on the Senate floor that the Supreme Court would overturn the Massachusetts law “and we’d have a predicament.”

 

At the very least, the ruling raises casts doubt on the validity of the New Hampshire law, which was submitted by Soucy in response to weekly protests outside the Planned Parenthood of Northern New England clinic on Penacook Street in Manchester.

 

But Soucy and other proponents stressed during the State House debate, as she and Hassan did today, that the New Hampshire law differed from the Bay State law and could be adjusted depending on the Supreme Court ruling in the Massachusetts case, if necessary.

 

Another top proponent of the New Hampshire law said the effect on the New Hampshire law is unclear.

 

“New Hampshire’s legislation was narrowly tailored to balance important constitutional rights and differs in significant ways from the Massachusetts law that was struck down in today’s decision,” said Jennifer Frizzell, vice president for public policy for Planned Parenthood of Northern New England. “It’s too early to speculate how this will affect access to New Hampshire’s reproductive health facilities.”

 

As Senate Bill 319 bill made its way through the Legislature, opponents warned the nation’s highest court would strike down the Bay State law and as a result most likely invalidate the New Hampshire law.

 

That ruling Thursday was unanimous that the Massachusetts law for a 35-foot buffer went too far – literally. The court had upheld an eight-foot buffer in Colorado in 2000.

 

“Petitioners wish to converse with their fellow citizens about an important subject on the public streets and sidewalks — sites that have hosted discussions about the issues of the day throughout history,” Chief Justice John Roberts wrote in Thursday’s decision. He wrote that the state has an interest in public safety, but it “pursued those interests by the extreme step of closing a substantial portion of a traditional public forum to all speakers.”

 

The irony of the decision, as proponents of the New Hampshire law pointed out during the winter and spring debate in Concord, is that the Supreme Court itself has placed a 250-foot buffer zone for demonstrators around its own building.

 

Chief Justice Roberts joined with the court’s four liberal justices in a relatively narrow analysis, focusing on the distance the Bay State law kept demonstrators from the clinics. The conservative justices said the law should be struck down because it specifically targets anti-abortion protesters.

 

“It is clear on the face of the Massachusetts law that it discriminates based on viewpoint,” Justice Samuel Alito wrote. “Speech in favor of the clinic and its work by employees and agents is permitted; speech criticizing the clinic and its work is a crime. This is blatant viewpoint discrimination.”

 

In the New Hampshire debate, Soucy told the Senate Judiciary Committee in January she filed the bill at the request of Manchester residents who, she said, had “challenging, unpleasant, frightening and even threatening experiences” being approached by pro-life activists who regularly appear next to the Planned Parenthood facility on Penacook Street.

 

A 25-foot buffer would allow the activists to express themselves in close proximity to the clinics while allowing clients and staff to enter and exit without being closely approached or “intimidated,” Soucy said.

 

But Rep. Kathleen Souza, R-Manchester, said the anti-abortion protesters were quiet and peaceful, while some “on the other side” engaged in aggressive behavior.

 

Souza said most Thursdays, pro-life activists gather at or near the entrance to the Planned Parenthood parking lot, pray and “reach out to women.”

 

But said she has had her “car window shot out with a pellet gun,” was accosted by pro-choice activists and saw pro-life signs ripped up, all further than 25 feet from the clinic.

 

The New Hampshire law’s “statement of findings and purpose” says recent demonstrations “outside of reproductive health care clinics have resulted in the fear and intimidation of patients and employees,” and have caused patients to believe “their safety and right to privacy are threatened.”

 

The law forbids anyone from being on a “public way or sidewalk adjacent to a reproductive health care facility within a radius of 25 feet of any portion of an entrance, exit or driveway.”

 

A law enforcement officer would issue one verbal warning to anyone who encroaches on the buffer, and anyone who does not comply would be guilty of a violation and subject to a minimum fine of $100.

 

The law also allows the attorney general or county attorney to seek a court injunction to prevent further violations.

 

In addition to prime sponsor Soucy and cosponsor D’Alleandro, the Senate Bill 319 had four senior Republican state Senate cosponsors – Senate Majority Leader Jeb Bradley of Wolfeboro, Bob Odell of Lempster, who is leaving the Senate, and Nancy Stiles of Portsmouth, who, like Boutin, is being challenged by a more conservative candidate, Steve Kenda, in a primary.

 

D’Allesandro also said the clinics do much more than perform abortions.

 

“These are women’s health centers where women go for breast cancer screening, cervical cancer screening and many other medical services,” he said. “They should be allowed to go there without being harassed. In this state almost 17,000 women use these facilities. Why deny women access to quality health care? That’s where I’m coming from.”

 

D’Allesandro said he hopes “something can be carved out” of the New Hampshire law to eliminate questions of constitutionality.

 

Author: John DiStaso

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