Michael Gaynor
Ayotte v. Planned Parenthood was not a great victory for either New Hampshire or pro-life
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By Michael Gaynor
September 6, 2010


Ayotte "won" a very limited victory (and no real credit to her as fill in in the case for her predecessor as New Hampshire Attorney General). While the case was on remand for the federal district court to address the remedy issue (i.e., the State of New Hampshire had not "lost" it), it was mooted by LEGISLATIVE action that Ayotte refused to help the pro-life side avoid! Accordingly, New Hampshire did not lose the COURT case and never should have paid Planned Parenthood. Yet Ayotte willingly paid $300,000 from the public fisc on the QT, while seeking reappointment by her liberal pro choice Democrat governor boss, John Lynch.


Ayotte v. Planned Parenthood was a unanimous United States Supreme Court decision on abortion (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=04-1144).

That's a sure sign it wasn't a great victory for either pro-life or pro-abortion.

The Supreme Court avoided the most controversial issues presented and instead focused on the proper remedy when part of a statute is found unconstitutional. It held that New Hampshire's Parental Notification Prior to Abortion Act would be unconstitutional when applied to the very small percentage of minors for whom an emergency abortion would be necessary to avert serious damage to their health. The lower court's decision to invalidate the entire statute based on its unconstitutional results in this small percentage of cases, however, was unnecessary, however, because "in this case the lower courts can issue a declaratory judgment and an injunction prohibiting [only] the statute's unconstitutional application." Due to doubt about which course the New Hampshire legislature would have preferred — wholesale nullification or narrower individual rulings — the Supreme Court remanded the case to lower court to determine legislative intent.

There is a misconception that the case was a great victory for former New Hampshire Attorney General and current candidate for New Hampshire's Republican nomination for United States Senator Kelly Ayotte.

Dr. Douglas Black, a prominent New Hampshire abortionists apparently realizes that. A big "Kelly Ayotte for Senate" sign in post in his yard, But the whole truth is just now circulating in New Hampshire.

Feedback on my article on the subject, titled "Governor Palin, Please Reconsider Your NH Republican Senate Primary Endorsement," was mixed.

Harold Turner, for example, was pleased to know previous not generally known facts and aware that the complete story helped his candidate and Ayotte's chief rival, Ovide Lamontagne:

"You are so 'correct' on this article about Ayotte-Palin-Ovide Lamontagne. None of the print media in NH is willing to dig as deep as you on these issues. I hope you will be able to continue writing in support of Ovide before the Sept 14th Primary. He is so underfunded compared to the other candidates and it is hard to get the message out.

"This piece in today's Nashua Telegraph(http://www.nashuatelegraph.com/news/842363-196/in-09-ayotte-okd-settling-abortion-case.html) is the closest thing we have seen on the Ayotte v. Planned Parenthood case. It was anticipated that the left leaning Telegraph would endorse Ayotte, but Landrigan has shown that he does not have a fondness for hometown candidate Ayotte.

"The grass roots Ovide supporters here are working as hard as we can to support him.... We welcome anything you can do to keep up the fight against his opponent(s). This is a very important race for our country."

But...a New Hampshire legislator supporting Ayotte, Kathleen Souza, emailed to chide me for explaining that the notion that Ayotte had "won" a great victory for New Hampshire and pro-life is wrong. (It's political spin or wishful thinking, and it has misled a number of pro-lifers in other states, like Sarah Palin, to champion Ayotte as a great pro-life warrior.)

Souza:

"As a New Hampshire State Representative I was an original sponsor of the parental notification law that went before the U. S. Supreme Court. I believe your article unfairly states that we lost the case. It also unfairly asserts that Kelly took it to that level simply because she inherited the job.

'If you read the transcript of the proceedings (I was there) you will note that the Supreme Court had difficulty with one of its applications, but Kelly argued that it would be constitutional in its other applications even if the lack of a medical exception should be one impermissible application. The Court agreed and remanded it to a lower court, asking that the N. H. legislature's intent be determined."

If Ayotte had "won" a great pro-life victory, would the ACLU and Planned Parenthood have issued the press release set forth below after the United States Supreme Court issued its decision?

http://www.aclu.org/reproductive-freedom/supreme-court-ruling-ayotte-v-planned-parenthood-recognizes-protections-womens-:

Supreme Court Ruling in Ayotte v. Planned Parenthood Recognizes Protections for Women's Health and Safety

January 18, 2006

FOR IMMEDIATE RELEASE CONTACT: media@aclu.org

WASHINGTON — The American Civil Liberties Union and Planned Parenthood Federation of America (PPFA) welcomed today's decision by the U.S. Supreme Court in Ayotte v. Planned Parenthood of Northern New England, et al, which unanimously recognized its precedent that abortion laws must protect women's health and safety.

"Today's decision tells politicians that they cannot jeopardize women's health when they pass abortion laws," said Jennifer Dalven, Deputy Director of the ACLU's Reproductive Freedom Project, and the attorney who argued Ayotte before the Court.

"The case began as a challenge to a New Hampshire law that prevents doctors from performing an abortion for a teenager under the age of 18 until 48 hours after a parent has been notified. Contrary to 30 years of Supreme Court precedent, the law contained no medical emergency exception to protect a pregnant teenager's health. The lower courts struck down the law because of this omission.

"We are relieved that the Supreme Court left in place protections for women's health and safety in abortion laws," said PPFA Interim President Karen Pearl. "We continue to believe that the law should be struck down by the lower court."

The Supreme Court asked the lower court to consider whether the New Hampshire legislature would have wanted this law with a medical emergency exception. If not, the Court said the law should be struck down in its entirety.

"The New Hampshire legislature intentionally omitted a medical emergency exception when it passed this law," Dalven said. "We continue to believe that the lower court will recognize this and strike down the law in its entirety."

New Hampshire abortion clinics and providers who brought the legal challenge are Planned Parenthood of Northern New England, the Concord Feminist Health Center, the Feminist Health Center of Portsmouth, and Wayne Goldner, M.D.

Attorneys for the respondents include Dalven, Steven R. Shapiro, Louise Melling, Talcott Camp, Corinne Schiff, Brigitte Amiri, and Diana Kasdan of the ACLU; Dara Klassel of Planned Parenthood Federation of America; Martin P. Honigberg of Sulloway & Hollis, PLLC; and Lawrence Vogelman, of Nixon Raiche Manning Vogelman & Leach, PA and legal director of the New Hampshire Civil Liberties Union.

For more information, go to: www.ayottevplannedparenthood.org.

Planned Parenthood Federation of America is the nation's leading sexual and reproductive health care advocate and provider. We believe that everyone has the right to choose when or whether to have a child, and that every child should be wanted and loved. Planned Parenthood affiliates operate more than 850 health centers nationwide, providing medical services and sexuality education for millions of women, men, and teenagers each year. We also work with allies worldwide to ensure that all women and men have the right and the means to meet their sexual and reproductive health care needs.

The ACLU is our nation's guardian of liberty, working daily in courts, legislatures and communities to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States.

What "victory" did Ayotte win?

Ayotte "won" a very limited victory (and no real credit to her as fill in in the case for her predecessor as New Hampshire Attorney General). While the case was on remand for the federal district court to address the remedy issue (i.e., the State of New Hampshire had not "lost" it), it was mooted by LEGISLATIVE action that Ayotte refused to help the prolife side avoid! Accordingly, New Hampshire did not lose the COURT case and never should have paid Planned Parenthood. Yet Ayotte willingly paid $300,000 from the public fisc on the QT, while seeking reappointment by her liberal pro choice Democrat governor boss, John Lynch.

Ayotte "won" something: she won reappointment from Governor Lynch!

With "wins" like that, abortion on demand will continue to be the law of the land!

© Michael Gaynor

 

The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
(See RenewAmerica's publishing standards.)

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)

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