U.S. Supreme Court decision on Mass. buffer zone law leaves uncertainty in N.H.
The U.S. Supreme Court struck down a Massachusetts law creating 35-foot “buffer zones” around abortion clinics yesterday, leaving questions about the future of a similar law in New Hampshire recently signed by Gov. Maggie Hassan and set to take effect July 10.
“I’m certain this opinion is going to be the crucial precedent if a lawsuit is brought,” said John Greabe, chairman of the Warren B. Rudman Center for Justice, Leadership and Public Policy at the University of New Hampshire School of Law.
New Hampshire’s law creates 25-foot buffer zones around any health care facilities that provide abortions, excluding hospitals. It prohibits people from congregating or standing within the buffer zone, whether to loudly protest or peacefully hand out leaflets. Patients, employees and passers-by using the sidewalk as a throughway are excluded from the law.
All nine Supreme Court justices ruled the Massachusetts law was unconstitutional, but there were significant differences between the opinion of Chief Justice John Roberts, who joined the liberal justices in writing for the majority, and the four remaining justices. Roberts’s opinion was narrow and specific to the Massachusetts law, meaning in order for the New Hampshire law to change, someone would have to bring a direct court challenge. Justice Antonin Scalia wrote an opinion that was much broader.
“If Roberts had joined with the four who concurred (with Scalia), it would have been pretty open and shut, to say the least, that New Hampshire’s law would’ve been unconstitutional,” Greabe said.
Hassan said she believes New Hampshire’s law is different from Massachusetts’s, but that the state will review yesterday’s decision.
“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,” Hassan said in a statement. “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.”
Sen. Donna Soucy, a Manchester Democrat and the bill’s prime sponsor, also said in a statement that she believes New Hampshire’s law is narrowly tailored.
New Hampshire’s law is different in that it puts a greater emphasis on fear and intimidation caused to patients, employees and neighbors of the facilities, Greabe said, and violations of the law would bring civil penalties, not criminal ones. Roberts’s opinion points out that no other states have this type of buffer zone law, which Greabe said could work in opponents’ favor.
In Roberts’s opinion, he acknowledged Massachusetts’s compelling desire to promote public safety, but argued the state had not fully explored other methods of maintaining safety without restricting First Amendment rights. Roberts did say that the law was content neutral in response to claims that it unfairly targeted anti-abortion speech. But, he wrote, the buffer zones create a greater burden on free speech than is necessary to achieve public safety interests.
“Respondents assert 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,” Roberts wrote.
Republican state senators who opposed the New Hampshire law were quick to weigh in on the court decision yesterday.
“Hopefully the court’s decision will stop that from taking effect,” said Sen. David Boutin, a Hooksett Republican.
“In the decision, it talks about the need for these buffer zones to be very narrowly tailored. I don’t believe the one that we passed is narrowly tailored enough,” said Sen. Sharon Carson, a Londonderry Republican.
Both Carson and Boutin are on the Senate Judiciary Committee, which recommended the Senate kill the bill. But on the Senate floor, all 11 Democrats and four Republicans – Jeb Bradley of Wolfeboro, Nancy Stiles of Hampton, Bob Odell of New London and John Reagan of Deerfield – voted to pass the bill.
(Kathleen Ronayne can be reached at 369-3309 or firstname.lastname@example.org or on Twitter @kronayne.)