Buffer Zone Repeal (HB 589, 2017)

Among Cornerstone’s goals is the protection of human life from the time of conception to the end of natural life. Along with that goes our interest in recognition of the constitutional First Amendment rights of people peacefully advocating for protection of human life. To that end, we ask you today to support HB 589, repealing New Hampshire’s so-called buffer zone law.

HB 589 gives you a chance to take off the books a 2014 law that restricts First Amendment rights without enhancing safety for anyone inside or outside of abortion facilities.

A federal Circuit Court of Appeals recently upheld a federal district court decision that a formal challenge to New Hampshire’s buffer zone law is premature since the law has not yet been enforced. That is a far cry from upholding the law itself. The New Hampshire law has not had its day in court because the abortion providers who successfully lobbied for the law have thus far declined to use it.

The previous governor chose to sign the bill despite the U.S. Supreme Court’s 2014 decision in McCullen v. Coakley to strike down a similar Massachusetts law. We are aware that New Hampshire’s buffer zone sponsors have repeatedly and mistakenly claimed that since New Hampshire law provides for a more “narrowly-drawn” zone tha the Massachusetts law, that McCullen somehow would not apply to New Hampshire’s law. If you are tempted to proceed on that assumption, we invite you to read McCullen.

The Massachusetts law was struck down as an impermissible infringement on First Amendment rights because Massachusetts had failed to employ less-restrictive measures to limit the activities of peaceful pro-life witnesses like Eleanor McCullen. Such measures might include enforcement of laws and ordinances against, for example, trespassing, loitering, or disorderly conduct. Under McCullen, until and unless existing laws have proven ineffective to deal with public safety concerns in a public forum like a sidewalk, the state may not “buffer” the First Amendment.

“The point is instead that the Commonwealth has available to it a variety of approaches that appear capable of serving its interests, without excluding individuals from areas historically
open for speech and debate….Although respondents claim that Massachusetts ‘tried other laws already on the books,’… they identify not a single prosecution brought under those laws within at least the last 17 years.” (Roberts, C.J., McCullen et al. v. Coakley, 573 U.S.___ [2014])

After the peaceful pro-life witnesses in Massachusetts prevailed at the Supreme Court, the Commonwealth was ordered to pay the plaintiffs’ attorneys fees of $1.2 million. The taxpayers, not anti-First-Amendment legislators, were stuck with the bill for defending a bad law. We would be foolish not to take a lesson from our neighbors’ experience.

New Hampshire’s buffer zone law seeks to limit peaceful exercise of First Amendment rights without offering any enhanced safety to women and workers going into abortion facilities – or standing outside those facilities, for that matter. A restriction on First Amendment rights has no bearing on anyone determined to commit acts of violence, thus calling into question the effectiveness of the law in providing for what the buffer zone law’s sponsor called “safety and balance.” What the restriction does do is open up the risk of expensive litigation to defend a law that will run right into the McCullen precedent. Repeal is the wise course for New Hampshire. We urge you to vote Ought to Pass on HB 589.