June 26, 2014
This morning, the U.S. Supreme Court unanimously struck down a Massachusetts law that made it a crime to knowingly stand on a “public way or sidewalk” within 35 feet of an entrance or driveway to any “reproductive health care facility.”  The Court concluded that this 35-foot buffer zone violated the First Amendment to the U.S. Constitution because it was not “narrowly tailored” and it “burden[ed] substantially more speech than is necessary to further the government’s legitimate interests.”  The McCullen decision raises significant concerns about the constitutionality of New Hampshire law SB 319—effective July 10 of this year—and the New Hampshire legislature will need to revisit the law in light of this decision.
The ACLU—including its New Hampshire affiliate—has long been committed to preserving a woman’s constitutional right to decide to end a pregnancy.  “Reproductive freedom is critical to our society.  With reproductive freedom comes opportunity: opportunity to build strong families and to enjoy a productive and meaningful life,” said Gilles Bissonnette, the staff attorney for the New Hampshire Civil Liberties Union.  The ACLU has therefore participated in every major reproductive rights case decided by the U.S. Supreme Court over the past fifty years.  The ACLU has also consistently argued in this context that constitutional rights can quickly become meaningless if they cannot be exercised without running a gauntlet of violence.
But our right to peaceful free speech in public places is also important.  Since its founding in 1920, the ACLU has vigorously defended the right to free speech on public streets and sidewalks, and has appeared before the U.S. and New Hampshire Supreme Courts on numerous occasions in support of that principle.  As the New Hampshire Supreme Court has explained, public sidewalks and streets are “fundamental to the continuing vitality of our democracy, for time out of mind, [they] have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.”  As such, government entities like New Hampshire are strictly limited in their ability to regulate private speech in such public forums.
Earlier this year, the New Hampshire legislature passed and, on June 10, 2014, the Governor approved SB 319.  Under SB 319, it will become a violation-level offense for a person to “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.”
As the U.S. Supreme Court explained in McCullen, Massachusetts’ 35-foot buffer zone served that state’s legitimate interests in maintaining public safety on streets and sidewalks and in protecting a woman’s freedom to seek pregnancy-related services.  SB 319 similarly serves New Hampshire’s important state interest in ensuring that all women in our state have the ability to avail themselves of their constitutional right to control their own bodies by safely accessing reproductive health care clinics.
But SB 319, in light of the McCullen decision, likely is not a narrowly-tailored means to address these important state interests.  As the McCullen Court explained, the 35-foot buffer zone in Massachusetts imposed serious burdens on speech, depriving certain individuals who oppose abortion of their two primary methods of communicating with arriving patients: (i) close, personal conversations and (ii) distribution of literature.
As in McCullen, to the extent SB 319’s 25-foot buffer zone deprives individuals of the ability to engage in personal and consensual conversations with women about various alternatives to abortion, SB 319 likely is constitutionally problematic.  As the Court held in McCullen, given the importance of this form of communication, it is not enough to say that individuals can still be seen and heard by women within the buffer zone.
In short, the McCullen Court concluded that the 35-foot buffer zone burdened substantially more speech than necessary to achieve Massachusetts’ asserted interests.  But, in so doing, the Court made clear that states can pass more tailored laws that specifically ensure access to clinics, thereby providing guidance to state legislatures like New Hampshire’s.
As McCullen explained, a state could enact legislation similar to the federal Freedom of Access to Clinic Entrances Act of 1994, 18 U. S. C. §248(a)(1), which imposes criminal and civil sanctions for obstructing, intimidating, or interfering with persons obtaining or providing reproductive health services.  Further, the Court noted that obstruction of clinic driveways could be addressed through local traffic ordinances.  Any concern a state has with individuals inadvertently obstructing access to clinics simply by gathering in large numbers could be addressed through a law requiring crowds blocking a clinic entrance to disperse for a limited period of time when ordered to do so by the police.
We encourage the New Hampshire legislature to consider these constitutional alternatives as it revisits SB 319.