Judge Stops New Hampshire Buffer Zone After Supreme Court Upholds Pro-Life Free Speech

State   |   Steven Ertelt   |   Jul 10, 2014   |   11:10AM   |   Concord, NH

In a victory for pro-life advocates who provide abortion alternatives for women outside abortion clinics in New Hampshire, a federal judge on Wednesday put a temporary halt to the state law that establishes a buffer zone preventing free speech.

Alliance Defending Freedom attorneys and allied attorneys filed a lawsuit in federal court Monday against a New Hampshire law that allows the creation of 25-foot zones in which no person may speak, stand, or even enter on public ways and sidewalks outside of abortion facilities. In June, the U.S. Supreme Court unanimously struck down a similar law in McCullen v. Coakley, a case ADF attorneys and allied attorneys filed in 2008.

With the high court’s ruling in place, the judge struck down the Granite State ordinance a day before it was slated to go into effect.

judgepic11In a seven-page order issued late Wednesday, District Court Judge Joseph Laplante told the communities of Concord and Derry they could not enforce the provisions of the buffer zone law against clinics within their boundaries.

Laplante noted that other communities, including Manchester and Keene, as well as county prosecutors and Attorney General Joseph Foster have agreed to not enforce the law until the judge holds a hearing in his courtroom on July 25.

Michael Tierney, a lawyer for some of the marchers outside the clinic – whom Tierney refers to as “sidewalk counselors” — said he sought a restraining order after state officials and Planned Parenthood spokesmen said they were studying the newly passed state law in light of the June 26 decision by the U.S. Supreme Court, which struck down a similar buffer-zone law in Massachusetts.

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Officials in Burlington, Vt., Portland, Maine, and Madison, Wisc., stopped enforcing buffer zones after the ruling, Tierney said.

“I was perhaps naively thinking New Hampshire would follow suit,” he said.

The law explicitly exempts abortion facility escorts, allowing such individuals to engage in speech and expressive activities favorable to abortion – encouraging and compelling women to enter the abortion facilities and continue with the abortions – while prohibiting pro-life advocates from engaging in any expressive activity within the zones. The lawsuit asks the court to put a halt to the law while the case moves forward.

“Americans have the freedom to talk to whomever they please on public sidewalks,” said ADF Senior Legal Counsel Matt Bowman. “That includes peaceful pro-life advocates who just want to offer information and help to women who would like it. The Supreme Court recently affirmed this vital freedom, which has been an essential part of American life since the nation’s founding. New Hampshire’s law suffers from the same unconstitutional problems as the one the Supreme Court struck down.”

On June 10, New Hampshire Gov. Maggie Hassan signed into law S.B. 319-FN, which created the anti-speech zones. Violators face a minimum fine of $100 and possibly further action from the attorney general or appropriate county attorney. The law is scheduled to go into effect Thursday.

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On behalf of several pro-life advocates, ADF filed the lawsuit, Reddy v. Foster, in the U.S. District Court for the District of New Hampshire together with allied attorneys Michael J. Tierney, Michael DePrimo, and Mark Rienzi, professor of constitutional law at Catholic University of America’s Columbus School of Law.

As the ADF lawsuit explains with regard to New Hampshire’s law, “The First Amendment contemplates no possible justification for such a measure. The freedom of speech is at its apex on public streets and sidewalks when citizens wish to persuade other citizens by means of leafleting, personal education, and peaceful protest. The U.S. Supreme Court just struck down a similar law from Massachusetts in McCullen v. Coakley…. McCullen directly controls this case and eliminates any plausible legal justification for the law challenged here.”

“New Hampshire has created an expansive anti-speech zone that cannot survive constitutional scrutiny,” explained Tierney, with the Manchester firm of Wadleigh, Starr & Peters, PLLC, and one of more than 2,400 attorneys allied with ADF. “There is no constitutional ground for creating speech-restricted zones on public ways and sidewalks.”