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Buffer Zone Ruling Raises Questions About New N.H. Law

Washington — The U.S. Supreme Court struck down a Massachusetts law creating 35-foot “buffer zones” around abortion clinics Thursday, 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 ... 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 Thursday’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, D-Manchester, the bill’s prime sponsor, also said 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’ opinion points out that no other states have the same type of buffer zone law as Massachsetts, which Greabe said could work in opponents’ favor.

In Roberts’ opinion, he acknowledged the state’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.

Republican state senators who opposed the New Hampshire law were quick to weigh in on the court decision Thursday.

Sen. David Boutin, R-Hooksett, said he hoped the court’s decision would stop New Hampshire’s law from taking effect.

“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.