It’s not often that a new law is wiped away before it even goes into effect. But the U.S. Supreme Court helped New Hampshire achieve this dubious honor on Thursday with its unanimous decision in McMullen v. Coakley.
The McMullen decision declares that states can’t unilaterally restrict the rights of law-abiding citizens to speak on a public sidewalk. Massachusetts had imposed buffer zones around the state’s abortion clinics to prevent counselors from speaking to patients entering these facilities. Supporters argued that the restrictions were necessary in order to ensure safe access to and from the clinics. But the U.S. Supreme Court has ruled that the government cannot go further than absolutely necessary when curtailing speech.
In writing for the rest of his colleagues, Chief Justice John Roberts defended the long-held right of Americans to speak about controversial topics on public sidewalks.
“Petitioners wish to converse with their fellow citizens about an important subject on the public streets and sidewalks — sites that have hosted discussions about the issues of the day throughout history.”
Supporters of the buffer zone law want to shield young women seeking abortions not only from public protest, but from counselors seeking to provide comfort and support.
The court struck down the Massachusetts buffer zones in large part because the law imposed blanket restrictions on public speech as a way to address crowd control issues at a single clinic in Boston. But as Roberts notes, “Any such obstruction can readily be addressed through existing local ordinances.”
As I noted on the Senate floor during debate over New Hampshire’s nearly identical buffer zone law, there are better ways to address the crowd control issues at a single abortion clinic in Manchester than by limiting speech at all such clinics.
In Massachusetts, the court found “the zones compromise petitioners’ ability to initiate the close, personal conversations that they view as essential to ‘sidewalk counseling.’” The same is true in New Hampshire.
So why did Gov. Maggie Hassan rush to sign an unconstitutional breach of the First Amendment into New Hampshire law? We tried to warn her that it would not survive the summer. In fact, the court’s imminent decision seems to have rushed the governor into signing the bill.
Given the McMullen decision, New Hampshire’s buffer zone law is null and void. The Legislature can’t officially repeal it until next year, but there is no way the Attorney General’s office or local police departments should waste resources attempting to enforce an unconstitutional statute.
New Hampshire should protect access to health care facilities and public safety. Thankfully, there have been no such issues at the clinic in Manchester. The city’s police department has done a fine job ensuring that no one is blocked from entering or leaving the facility, and that traffic flows safely through the neighborhood.
Should existing laws ever prove inadequate to serve these needs, the Legislature should find a solution narrowly crafted to preserve access and safety that does not “burden substantially more speech than is necessary to further the government’s legitimate interests.”
Abortion is a controversial issue. Our beliefs are personal and deeply held. Anything touching on this subject becomes polarized. But this week’s unanimous Supreme Court decision should convince us that the unconstitutional buffer zone law has nothing to do with abortion. Rather, “it imposes an especially significant First Amendment burden.”
Going forward, I hope that we can all agree, much like the liberal and conservative Justices on the U.S. Supreme Court, on the right of all Americans to speak freely on public sidewalks.
Sen. Sharon Carson, R-Londonderry, chairs the Senate Judiciary Committee.