A Christian legal group has asked a federal judge to block a New Hampshire law that bars demonstrators from coming within 25 feet of facilities that offer or perform abortions.
New Hampshire’s so-called buffer zone rule is set to take effect Thursday. But in the wake of a U.S. Supreme Court ruling that struck down a similar law in Massachusetts, Alliance Defending Freedom has filed a lawsuit in U.S. District Court to delay implementation of the new restrictions.
Matt Bowman, senior legal counsel of the Arizona-based ADF, said in a statement that New Hampshire’s law “suffers from the same unconstitutional problems” as Massachusetts’.
“Americans have the freedom to talk to whomever they please on public sidewalks,” Bowman said. “That includes peaceful pro-life advocates who just want to offer information and help to women who would like it.”
ADF describes itself as "alliance-building legal ministry" that advocates for religious freedom. The group was behind the successful legal challenge to the Massachusetts buffer zone law, as well dozens of other court cases in its 20-year history.
Gov. Maggie Hassan signed New Hampshire’s buffer-zone bill into law June 10. Supporters argued it was necessary to counter verbal harassment and intimidation by anti-abortion protesters who block sidewalks and force patients into confrontations. During legislative debate, Planned Parenthood of New England pointed to dozens of complaints by patients of the organization’s Manchester facility.
The Supreme Court's decision McCullen v. Coakley was unanimous in concluding that the Massachusetts law was unconstitutional. However, the justices did not agree on why.
In the majority opinion, five justices, including Chief Justice John Roberts, found that, while the law violated the First Amendment, it did not draw “content based distinctions” – that is, it was adopted in the name of public safety and patient access and not in an effort to stifle anti-abortion viewpoints.
In a separate concurrence, four justices disagreed, writing that the Massachusetts law attempted to silence the protestors’ speech based on its content and was therefore a much more blatant violation of the First Amendment.
The split in the court’s reasoning appears to be key to ADF's challenge to the New Hampshire statute.
The group’s 30-page complaint, filed Monday, argues that the law “is applied so as to restrict pro-life speech, but permit speech in favor of abortion or concerning topics and speakers not disfavored by the state of New Hampshire.”
ADF's co-counsel on the case, Michael Tierney, is a Manchester attorney representing seven New Hampshire anti-abortion activists who are challenging the state’s law.
"My clients are looking to have a quiet one-on-one conversation with people to explain to them the different options that are available to them," he said. "The McCullen decision explicitly said that there is no speech that is entitled to greater protection than this sidewalk counseling that is at issue here in New Hampshire."
Tierney said the problem with the New Hampshire statute is the frequent reference to “recent demonstrations outside of reproductive health facilities” that apparently intimidated patients and employees.
“The factual findings of the New Hampshire statute discuss that the purpose was [concerns] of the people entering the clinic, that they didn’t want to hear what people on the sidewalk wanted to tell them,” Tierney said. “The Massachusetts’ ordinance talked just about crowding of sidewalks. Here in New Hampshire, it’s specific to speech.”
New Hampshire’s law differs from the Massachusetts’ in other ways. New Hampshire seeks to prohibit protestors from coming within 25 feet of an abortion clinic, while Massachusetts established a 35-foot “protest-free” zone. First-time violators in New Hampshire would be subject to a warning, followed by a civil penalty of $100 for subsequent violations. The Massachusetts law carried criminal sanctions.
In its suit, ADF argues that New Hampshire has alternatives for ensuring unencumbered access to abortion clinics, including anti-harassment statutes, as well as the Freedom of Access to Clinic Entrances Act. The 1994 law, known as FACE, makes it a federal crime to use force or the threat of force to prevent people from receiving reproductive health care.
Hassan said her administration planned to “closely review” the Supreme Court’s ruling for its impact on New Hampshire’s law. On Tuesday, spokesman William Hinkle said the state Attorney General’s office was still “evaluating” the ADF suit.
"Bipartisan majorities of the New Hampshire House and Senate believed we needed to take action to ensure that women could access health care free from harassment, obstruction or threats to safety, and Governor Hassan will continue to work toward meeting that goal,” he said.