New Hampshire’s new abortion buffer zone law, signed by Gov. Maggie Hassan on June 10, was to take effect on July 10. It will not have the chance, seeing that it is unconstitutional, as predicted.
On Thursday the U.S. Supreme Court ruled — unanimously — that Massachusetts’ 35-foot abortion clinic buffer zone was an unconstitutional violation of citizens’ free speech rights. The law banned anyone from entering “a public way or sidewalk adjacent to a reproductive health care facility within a radius of 35 feet” of an entrance, exit or driveway of an abortion clinic. It created exceptions for people using the clinic’s services, the staff, public safety personnel and passersby.
The language in New Hampshire’s law is almost identical to the Massachusetts law on which it was based. In some parts, it is precisely the same. “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, exit, or driveway of a reproductive health care facility,” it states. It exempts exactly the same categories of people as the Massachusetts law does. New Hampshire’s buffer zone is just 10 feet shorter.
Citing precedent, the justices ruled that government must tailor any restrictions on speech so narrowly that they do not burden speech any more than absolutely necessary. The Massachusetts law created buffer zones that “burden substantially more speech than necessary to achieve the Commonwealth’s asserted interests,” the court said.
Yes, and that was by design. As we have written before about the New Hampshire law, the whole point was to squelch speech. If the point was actually to provide for the safe passage of clinic customers, a narrower law would have done the trick.
The court called Massachusetts’ law “truly exceptional” because “no other state” had “a law that creates fixed buffer zones around abortion clinics.” But this spring, while the Supreme Court was considering the Massachusetts law, New Hampshire passed its nearly identical law. Legislators did this knowing that the Massachusetts law on which the buffer zone bill was modeled might be struck down.
Furthermore, bill sponsor Donna Soucy is an attorney, as is Gov. Maggie Hassan. Both of them should have known the legal precedents well enough to know that the buffer zone they wanted to enact was on shaky legal ground. If they did not know that from their legal training, or from looking it up, they surely heard the critics who pointed that out during the legislative process, as Sen. Sharon Carson writes today. Both the Massachusetts and New Hampshire buffer zones banned people from engaging in constitutionally protected speech on public rights of way near abortion clinics. The Supreme Court called that “the extreme step of closing a substantial portion of a traditional public forum to all speakers.” Thus the U.S. Supreme Court in a unanimous ruling has used the word “extreme” to describe the lengths to which the pro-abortion left will go to silence abortion’s critics. Nice to have that on the record.