A bill to repeal New Hampshire’s ill-advised and as-yet-unenforced buffer zone law is scheduled for a Senate vote Thursday, May 5, two days after a committee voted 3-2 to give the bill an “ought to pass” recommendation. HB 1570 passed the House earlier this session.
The Senate tabled a repeal bill last year after an ought-to-pass motion failed on a tie vote.
HB 1570 attempts to repeal a law passed in 2014 to discourage peaceful pro-life witnesses from exercising First Amendment rights on public sidewalks outside abortion facilities. While the law delegates to abortion facility operators the right to restrict access to public property, no facility has yet done so. The law is on the books, “protecting” no one. Repeal should be a no-brainer.
The New Hampshire law is not designed to enhance the safety of women entering places where abortions are performed. That’s what laws against criminal threatening and harassment and simple assault are for. The buffer zone law wasn’t written to discourage blockades or traffic obstruction or trespassing; those offenses are covered by other laws as well. Those laws apply to people outside as well as inside abortion facilities – unlike the buffer zone law.
When the U.S. Supreme Court threw out Massachusetts’s old buffer zone law, one reason cited by Chief Justice Roberts in the 9-0 decision was that Massachusetts hadn’t tried to protect access and safety for everyone by using existing laws. From the decision (emphasis added):
[The Commonwealth] assert[s] undeniably significant interests in maintaining public safety on those same streets and sidewalks, as well as in preserving access to adjacent healthcare facilities. But here the Commonwealth has pursued those interests by the extreme step of closing a substantial portion of a traditional public forum to all speakers. It has done so without seriously addressing the problem through alternatives that leave the forum open for its time-honored purposes. The Commonwealth may not do that consistent with the First Amendment. [McCullen v. Coakley, 514 U.S. —(2014)]
Supporters of New Hampshire’s law have stated at hearings that the Granite State’s version is very different from Massachusetts’s overturned law, since Massachusetts had a 35-foot “buffer” and New Hampshire law called for an “up to” 25-foot buffer. It turns out that the size of the zone was irrelevant to the Supreme Court’s decision in McCullen. The Justices deemed the First Amendment more important.
