Not used but needed: Providers oppose efforts to repeal clinic buffer zones
Michelle Cilley Foisy, left, and Kelly Omu were among the women whose stories of fatal fetal anomalies late in pregnancy persuaded lawmakers to add an exception for those diagnoses to the state’s 24-week abortion ban. They joined a State House rally Tuesday opposing restrictions on abortion. (Annmarie Timmins | New Hampshire Bulletin)
In early April, a woman arrived at the Equality Health Center to terminate a pregnancy she wanted but was too ill to continue. Dehydrated from vomiting, she passed out outside the clinic and couldn’t walk in on her own.
As Dalia Vidunas, the center’s executive director, helped her through a crowd of 22 protesters, some blocked the stairs. One man stood out. “He started screaming at her,” Vidunas said, “telling her, ‘You are going to be nothing but the mother of a dead baby.’”
In years the Concord health center has seen protesters outside its doors, Vidunas has never used the 2014 “patient safety zone” law allowing her to keep them 25 feet back from patients. She’s increasingly reconsidered that over the past two years, she said, as she’s seen protesters become increasingly aggressive, hostile, and belligerent. After the April incident, Vidunas told city officials she wanted a buffer zone enforced.
A bill that has cleared the House and goes before the Senate Thursday would repeal the buffer zone law. And there it will end, Gov. Chris Sununu said Wednesday, vowing to veto it should it reach his desk.
“We’re not looking to make any changes to the buffer zones,” he said at a press conference.
Rep. Niki Kelsey, a Bedford Republican and sponsor of House Bill 1625, told the Senate Judiciary Committee last month the buffer zone law stifles free speech. And there are other laws, she said, to protect patients from illegal acts such as assault, criminal threatening, or harassment.
“The actual effect of the law is to privilege pro-abortion speech and marginalize speech critical of abortion,” Kelsey said.
The bill’s other supporters also point to a 2014 U.S. Supreme Court decision striking down Massachusetts’ 35-foot buffer zone law. Although the New Hampshire Attorney General’s Office said then that New Hampshire’s law differs enough to survive a legal challenge, opponents argue it’s no less unconstitutional.
Alliance Defending Freedom, a national Christian-rights group that brought the case against Massachusetts, lost its challenge of New Hampshire’s law in 2017. The court found that because no clinic had enacted the law, no one’s right to protest had been restricted.
Kevin Theriot, senior counsel for the group, said they are watching HB 1625 with hopes it passes.
“I think the most important thing to remember is that we all have the right to free speech,” he said. “And the government shouldn’t be in the position of denying this or giving private entities the ability to deny someone else free speech in a traditional public forum like a public sidewalk. And that’s because in the abortion context, the best choice is an informed choice. And the more information that women have, the better off they are.”
Shannon McGinley, executive director of Cornerstone Action, believes the clinics oppose the bill for reasons unrelated to safety.
“Clinic escorts (who accompany patients past protesters) have for years claimed they need the law because women are being harassed and obstructed outside these clinics,” she said in an email. “If that were true, one of them would have set up a buffer zone. They never have, because they know this law is unenforceable and want to keep it on the books to chill people from speaking.”
It’s true, none of the state’s three largest providers of abortion services, which also includes Planned Parenthood of Northern New England and the Lovering Health Center in Greenland, have used the law.
Providers said they have tried to deal with safety concerns by calling the police when needed or hiring their own security guards and building a fence, as Planned Parenthood did at its Manchester clinic. But the police can’t pursue charges if the patient declines to press charges, which many do, Vidunas said, to avoid ongoing interaction with a protester.
Vidunas was able to reach a compromise with the group that’s long been a regular presence at her site. Members of 40 Days for Life offer pamphlets and prayers to people entering the clinic, but they’ve agreed not to block patients’ access or carry graphic signs with blood and gory images, she said.
But new groups of protesters from out of state are taking a much more aggressive approach, she said.
“We firmly believe in the right to free speech,” Vidunas said. “What we don’t believe in is that people have the right to block people from entering a doctor’s office to get a procedure that is legal.”
The Lovering Health Center has a built-in buffer because it sits behind a fence and back from the sidewalk, said Executive Director Sandi Denoncour. But driving into the parking lot can be a challenge when protesters are there. And she shares concerns about increasingly aggressive behavior. Providers said they fear the leaked U.S. Supreme Court draft opinion overturning Roe v. Wade is going to embolden protesters, especially in states that have fewer abortion restrictions.
“The tenor …. around abortion access changes quickly,” she said. “It has changed quickly. Knowing we could enforce this buffer zone if it becomes necessary is an added layer of protection for our staff and our patients. For that reason, it’s an important safety measure to keep in place.”
Sen. Becky Whitley, a Hopkinton Democrat, echoed those concerns last month during a Senate Judiciary Committee hearing on the bill.
“We’re heading into a potentially really disruptive moment in our national discussion on reproductive rights,” she said, urging colleagues to vote down the bill. “And you’re only going to see an increase in violence. We do know that people are going to those states that have more permissive reproductive rights, and I’m afraid that’s going to happen in New Hampshire.”
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