While Town Council Chairman Mark Osborne erred on the side of caution in delaying obedience to a federal injunction to stop abortion clinic buffers, the question may be moot for Derry. The town has neither abortion clinics nor visible protesters of them.
New Hampshire’s SB 319 was scheduled to go into effect July 10 and would have allowed abortion providers to set up a 25-foot buffer zone around any facility providing abortions. The buffer zones were intended to shield women seeking the termination of a pregnancy, or advice on the subject, from anti-abortion protesters and “sidewalk counselors.”
But U.S. District Court Judge Joseph Laplante issued a ruling Wednesday, July 9, halting the enforcement of the law after a conservative Christian group, the Alliance Defending Freedom, filed a federal lawsuit seeking to strike down the New Hampshire buffer zone around abortion clinics, stating that the buffer zone law violates the free speech rights of opponents. ADF also filed a lawsuit against Massachusetts that led to the Supreme Court ruling striking down that state’s buffer zone.
In response, New Hampshire Atty. General Joseph Foster argued that the New Hampshire zone was a flexible zone of up to 25 feet and may not be used at all providers, especially those where no protesting exists. Foster argued that the law does not mandate the creation of buffer zones.
Derry and Concord were later cited in the press as intending to uphold the buffer law.
Osborne said he was informed of the injunction by the town attorney and staff on the same date it was issued. “I got the relevant information from other people and decided I wanted to jump on it right away,” he said. As the town charter does not allow him to make decisions without the Council, he scheduled an emergency meeting for July 10, the same day the law would have been implemented.
“I scheduled an emergency meeting with the attorney and Council to discuss our legal options,” Osborne said.
“But we learned that morning that the federal judge wanted to know the towns’ opinions no later than 10:30 a.m.,” Osborne said.
His answer to Laplante was not so much a refusal to honor the injunction as it was a refusal to make a decision without the rest of his team, according to Osborne. “I spoke with our attorneys and we determined that under the town charter and RSA 91:A, Derry would not state a position until we had all met and discussed it,” he said.
In scheduling his meeting for July 10, Osborne said, “I thought I was ahead of the curve.”
Osborne observed that other towns may have been violating their charters by giving Laplante an answer without discussing it as a legislative body.
“We wanted to at least post it,” Osborne said.
The Council eventually did meet and decided not to take a position on the buffer zone, but by then the judge had already issued the injunction, “and we’re fine with that,” Osborne said.
Osborne said he had neither seen nor heard of abortion protesters in Derry and noted it may not be an issue. “If we don’t have the services, it’s a moot point,” he said, adding, “We may not be subject to the litigation.”
Nancy Notis, associate director of marketing and development for HCA Portsmouth Regional Hospital and Parkland Medical Center, the latter in Derry, said in an e-mail, “It is not in our mission to terminate pregnancies and we have had no issues with protesters.”
Jennifer Frizzell, a spokesperson for Planned Parenthood of Northern New England, said that while the agency has an office, the Derry Health Center, in town, it does not perform abortions at the facility, instead referring women to facilities in other towns.