Repeal the Buffer Zone Law (HB 124, 2019)

[Testimony submitted to House Judiciary Committee by Christopher Jay, Attorney with Cornerstone]

Cornerstone Action is a nonprofit, nonpartisan New Hampshire public policy organization that advocates to protect life, religious liberty, and family in the state of New Hampshire.  We ask your support of HB 124, in repealing New Hampshire’s so-called “buffer zone” law. This “buffer-zone” law is squarely unconstitutional. It cannot be enforced without violating the U.S. Constitution – and without entangling the state in a futile and unsuccessful lawsuit – likely to the tune of millions of taxpayer dollars.

HB 124 would repeal a 2014 law that restricts First Amendment speech rights on public sidewalks around abortion businesses. This “buffer-zone” law is clearly untenable in light of the Supreme Court’s 2014 ruling in McCullen v. Coakley.

Some have suggested that the New Hampshire buffer zone law could somehow escape McCullen’s judgement. To understand just how tenuous these arguments are, it is worth setting the two pieces of legislation, the Massachusetts version from McCullen, and the New Hampshire version found in RSA 132:37-40, side by side.

The Massachusetts law reads: “No person shall knowingly enter or remain on a public way or sidewalk adjacent to a reproductive health care facility within a radius of 35 feet of any portion of an entrance [of an abortion business],” and then proceeds to outline exceptions for abortion employees.

The New Hampshire law reads: “No person shall knowingly enter or remain on a public way or sidewalk adjacent to a reproductive health care facility within a radius up to 25 feet of any portion of an entrance [of an abortion business],” and then proceeds to outline exceptions for abortion employees.

Both use the same language of who is exempted (abortion business employees, law enforcement, customers, and those passing by). Other than the difference of 25 vs. 35 feet, the language is almost word-for-word the same: clearly, the New Hampshire legislation was modeled directly off the Massachusetts legislation.

The Supreme Court in McCullen struck down the Massachusetts buffer zone law because it was not narrowly tailored to achieve a compelling government interest. Put another way, Massachusetts law silenced too much speech without a good enough reason. The court that receives the inevitable lawsuit challenging RSA 132:37-40 will strike it down for the exact same reason – that court will have no choice. It stretches credulity to imagine any other result when the two laws so closely track each other – as if three small steps could make the difference between “too much speech being stifled” and “just right.”

At this point, this bill is not about the debates surrounding abortion. It is about severing a law that is a massive liability to the state of New Hampshire, however one looks at it. Doing the right thing for New Hampshire in this case means putting aside partisan ideology, and recognizing that this law, which was unconstitutional from the start, must be repealed. For this reason, Cornerstone urges you to vote Ought to Pass on HB 124.