All Sections

Home | State House Dome

Garry Rayno's State House Dome: Buffer zone ruling by U.S. Supreme Court fuels abortion feud

June 28. 2014 10:20PM

The U.S. Supreme Court ruled last week that states cannot unilaterally establish buffer zones around abortion clinics in order to block potential clashes between pro-choice and anti-abortion advocates and between patients and self-described "counselors."

New Hampshire's new law creating a 25-foot buffer certainly will be affected by the decision, but how much and in what way will take some time to determine, almost certainly through a court challenge.

Opponents of the New Hampshire law immediately declared victory, saying the law should not be enforced once it becomes effective July 30, but supporters said a legal review needs to be done to determine whether there is any impact.

While the nine U.S. Supreme Court Justices agreed the Massachusetts law and its 35-foot buffer zone is unconstitutional, they split 5-4 on the question of the constitutionality of buffer zones.

Chief Justice John Roberts, writing for the majority, which included the court's four liberals, said the 35-foot zone was unconstitutional because it overreached.

The opinion said clashes at one Boston clinic do not justify restricting free speech at all such facilities, and the state has other options to ensure protesters do not intimidate or interfere with patients.

The four conservatives said the buffer zone is unconstitutional - period.

However, the ruling left states and their lawmakers some wiggle room to craft narrow buffer zones to protect patients and staff while not restricting free speech and assembly rights.

While supporters of New Hampshire's statute may argue that the law was narrowly drawn - as did the bill's prime sponsor, Sen. Donna Soucy, D-Manchester - others do not believe it is narrow enough to pass muster.

The American Civil Liberties Union has argued in support of abortion rights before the U.S. Supreme Court and elsewhere, but has also been a staunch defender of free speech on public streets and sidewalks, arguing that principle in both state and federal courts.Gilles Bissonnette, the staff attorney for the New Hampshire Civil Liberties Union, said Senate Bill 319 is likely not tailored narrowly enough.

The U.S. Supreme Court's ruling came in the case McCullen v. Coakley.

"As in McCullen, to the extent SB 319's 25-foot buffer zone deprives individuals of the ability to engage in personal and consensual conversations with women about various alternatives to abortion, SB 319 likely is constitutionally problematic," Bissonnette said.

But Bissonnette said the ruling explains the state could pass laws similar to the federal act that imposes criminal and civil sanctions for obstructing, intimidating or interfering with patients or staff providing health services.

Bissonnette also said the ruling notes that local ordinances can be used to address obstructing clinic driveways, while state laws could require crowds blocking entrances to a clinic to disperse for a limited period of time.

"We encourage the New Hampshire Legislature to consider these constitutional alternatives as it revisits SB 319," Bissonnette said.

The ruling also became political fodder for the Republican U.S. Senate contest and the governor's race.

Both gubernatorial candidates Andrew Hemingway and Walt Havenstein took aim at Gov. Maggie Hassan for signing the bill into law the month, saying it was clearly unconstitutional and asking why the state would want to jump the gun and face possible litigation when it could have waited until the U.S. Supreme Court ruled.

The GOP U.S. Senate race is a little different. Scott Brown voted for the Massachusetts law when he was a state senator and issued a statement strongly defending the buffer zone and urging Hassan to make the necessary changes to preserve the law.

Bob Smith and Jim Rubens applauded the ruling, and Smith went a little further, going after Brown, Hassan and U.S. Jeanne Shaheen, who said she was disappointed in the ruling.

"Scott Brown voted for the buffer zone bill when he was a Massachusetts state senator. Liberal Governor Maggie Hassan also signed the buffer zone into law in New Hampshire, and Senator Shaheen has long been an outspoken advocate for abortion," Smith said. "Once again, Senator Brown finds himself aligned with the left and out of touch with the Republican Party."

The next state legislature will have to decide whether the law will remain intact - and likely unenforceable after the U.S. Supreme Court ruling - or be redrawn to meet the court's limitations.

Ballot Law Commission: On Monday, the five-member commission will decide whether GOP gubernatorial candidate Walt Havenstein's name will appear on the Republican primary ballot.

Havenstein asked the commission to make a declaratory ruling to end the discussion over whether he is a New Hampshire resident even though he worked and lived in Maryland from 2007 to 2012 when he was an executive with two companies.

Havenstein says he temporarily lived in Maryland, but never changed his "domicile" since he moved to New Hampshire in 1999.

But Democrats argue he received a property tax break available only to Maryland residents, registered his car in that state and held a Maryland driver's license.

"Domicile'' is the key, but state law is not definitive and treats it more like a state of mind. "I intend New Hampshire to be my home."

But recent changes in state law require anyone claiming New Hampshire as his or her domicile for voting has to register his or her car in the state and have a N.H. driver's license.

Last week, Democrats sought additional information from Havenstein and a delay, but Chairman Brad Cook denied that request, saying he hopes to have the decision and the case closed by Monday.

Cook, who was one of the attorneys in the protracted 1996 fight between GOP gubernatorial candidates Bill Zeliff and Ovide Lamontagne over petitions needed to break the state spending cap, is not likely to want to see anything like that repeated.

Also, the terms of two of the members, Michael Eaton of Chichester and Martha Van Oot of Concord, end July 1, which could pose a problem.

If history is any indication, the commission will need some very convincing evidence, such as Havenstein voting in a Maryland election, to prevent him from appearing on the GOP primary ballot.

Nothing has surfaced yet to indicate Havenstein voted anywhere but New Hampshire.

Monday will be a long day.

ComeBack: Nuclear power watchdog Stephen Comley believes he is once again making some headway in his quest to hold the nuclear industry and regulatory officials accountable.

The longtime activist began his crusade when he did not receive what he believed were adequate answers about evacuating patients from his family-owned nursing home in Rawley, Mass., which is within the 10-mile radius of Seabrook Station.

Comley has been circulating a petition to urge an investigation into the Nuclear Regulatory Agency, saying it has been covering up evidence of substandard parts in nuclear power plants, his longtime contention.

He spoke at a hearing in December on Seabrook, expressing concerns about plant evacuation plans, and continues to push that point.

"I'm having a ball," Comley said after he went to Bike Week in Weirs Beach, leaving signs along the road asking President Obama to "Protect US Democracy" by investigating the NRC.

He said he has rallied Rawley townspeople and expects to receive a letter from Massachusetts Gov. Deval Patrick asking the NRC to investigate evacuation plans at Seabrook Station.

Comley said he has been talking to Massachusetts state legislators, as well, and speaking to college students and his fellow residents in the Rawley area to rally support for his cause.

"Things are really starting to take off," Comley said last week, but noted he is yet to meet with key people in the New Hampshire governor's office to talk about his concerns about safety at the plant.

Gas Tax Protest: With the state gas tax set to go up about 4 cents Tuesday, the American for Prosperity N.H. group could not help itself.

The group's honorary chairman, Tom Thomson, will speak at the event along with others affected by the first increase in the tax since 1991.

"This 23 percent gas and diesel tax hike is coming at a time when gas prices are already at a six-year high," said Greg Moore, the group's state director. "Working families can't afford a huge new gas tax hike, and the increase in the tax on diesel will drive up the costs of goods - from groceries to clothes to furniture - for everyone in New Hampshire."

He said the people of New Hampshire need to hold accountable the leaders who supported the tax.

The protest takes place at 11 a.m. Monday at Mr. Gas on Route 3A in Hooksett, just off Exit 10 of Interstate 93.

Political Money: N.H. Rebellion wants residents to walk the state's Seacoast to highlight the problem with money in politics.

"The role that money now plays in the political process disrupts the free market, encourages polarization, forces politicians to cater to special interests, discourages new candidates from running and leaves the public ever more disillusioned," said the group's executive director, Jeff McLean.

From 8 a.m. to 2:30 p.m. July 5, anyone concerned about the role of big money in politics can walk the 16-mile stretch of coastline, starting in Hampton and ending at Fort Constitution in New Castle, McLean said.

More information is available at

Courts Politics New Hampshire

More Headlines