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Friday, September 3, 2010

In ’09, Ayotte OK’d settling abortion case

For months, Senate Republican candidate Kelly Ayotte’s campaign has promoted that she “won” a U.S. Supreme Court decision, defending a 2003 New Hampshire law requiring that a minor girl notify a parent before getting an abortion.

Yet, as attorney general in April 2009, Ayotte approved spending $300,000 in taxpayer money to settle the case and pay the legal costs of the opposing party, after a U.S. Circuit Court of Appeals judge decided Planned Parenthood of Northern New England was the winner.

The state paid Planned Parenthood with two payments of $150,000 each in April and August 2009. These payments quietly passed through the state’s budget office and did not require the approval of the Legislature or Gov. John Lynch.

“After reviewing the court’s order, this office determined that it was in the state’s best interest to settle the attorneys’ fees litigation in full through the payment of two installments over two fiscal years,” wrote Deputy Attorney General Orville “Bud” Fitch.

The case has played a prominent role in Ayotte’s campaign. Former Alaska Gov. Sarah Palin highlighted it when endorsing Ayotte in July.

“It’s my honor to endorse a Granite State ‘mama grizzly’ who has broken barriers, fought off and locked up criminals, and battled all the way to the U.S. Supreme Court to protect the rights of New Hampshire parents – and won!” Palin wrote.

House Finance Committee Chairwoman Marjorie Smith, D-Durham, said she knew the judge had ordered the state to negotiate a settlement, but was unaware of the specifics.

“I didn’t know the details,” Smith said. “I didn’t know them in this case or any other cases where this kind of settlement happened.”

State law gives the attorney general exclusive authority to settle lawsuits without legislative approval.

Some in the anti-abortion rights community were angered Thursday to learn that taxpayer money got paid to pick up any expenses for the opposition.

“Most people still don’t know about this,” said Kevin Smith, executive director of Cornerstone New Hampshire, a socially conservative interest group. “The few I have talked to in the right-to-life community are furious. They think it’s atrocious the state would settle with Planned Parenthood after the state had not lost in the Supreme Court.”

Ayotte said the settlement was the state’s only course because the Democratically led Legislature had repealed the parental notification law and Lynch signed it off the books in 2007.

On Aug. 12, 2008, U.S. District Court Judge DiClerico ruled Planned Parenthood had prevailed and ordered the two sides to negotiate terms.

“There wasn’t any basis to defend a law that didn’t exist anymore,” Ayotte said during a telephone interview. “The judge had ruled after the law was repealed. I had to follow the judge’s ruling because there was no longer a basis on which to defend it.”

State Rep. Bill O’Brien, R-Mont Vernon, said he was disappointed Ayotte didn’t continue pressing the matter.

“I find that to be an unfortunate position she took,” said O’Brien, a lawyer supporting GOP primary rival Ovide Lamontagne. “No one prevailed. Certainly the state didn’t lose, the attorneys should not have been paid and $300,000 is a lot of money.”

O’Brien said Ayotte was an excellent attorney general and should not be judged on the basis of one case.

“Looking back, it’s understandable why this wasn’t publicly known,” O’Brien said. “If it had been, there would have been a whole bunch of us in staunch opposition to it.”

Smith, who supports abortion rights, raised a flag about the taxpayer cost of this lawsuit back in 2008.

“I was concerned about the incredible costs already involved in this matter,” Smith said. “It’s a legitimate expense. The state lost the case; they were obligated to pay.”

Planned Parenthood President and CEO Nancy Mosher said in September 2008 that her group won at every level of the courts and was entitled to fees and costs.

“The reason we pursued this is that it’s been very costly to take this case as far as the Supreme Court,” Mosher said. “It wasn’t in the budget. At this point, we’re grateful to be at the end of very long case, and we are pleased that the unconstitutionality of this law has been upheld.”

In its decision, the U.S. Supreme Court affirmed the rights of states to adopt parental notification laws, but decided that New Hampshire’s exception for the health of the mother was constitutionally flawed. The justices sent the case back down to the lower court.

In the settlement, Deputy Attorney General Fitch noted Planned Parenthood asked for $532,000 and the state negotiated to the lower amount. The payments were spread over two years because at the time the recession had begun to take a toll on state revenues.

Ayotte opposes abortion except in cases of rape, incest and danger to the mother.

She recalled when Democrats took over the Legislature after the elections in 2006, she came under heavy political pressure to drop the entire matter.

“I took that case to the Supreme Court to defend the parental notification law at a time when Planned Parenthood called for my resignation,” Ayotte said.

Lynch had publicly opposed Ayotte’s decision to appeal and filed a court brief in support of Planned Parenthood’s position.

Ayotte denied her decision to settle and pay legal costs had anything to do with seeking Lynch’s approval for another four-year term.

“This was all about the judge’s ruling, nothing more,” Ayotte said.

On March 31, 2009, the Executive Council approved Lynch’s nomination of Ayotte to another four-year term. About 100 days later, Ayotte stepped down to explore the campaign to replace U.S. Sen. Judd Gregg.

Ayotte has won significant support from the anti-abortion community with endorsements from National Right to Life, New Hampshire Citizens for Life and the Susan B. Anthony List.

Edward Holdgate, former president of New Hampshire Right to Life, recently endorsed Ayotte over Lamontagne, who has been criticized for representing Catholic Medical Center in its proposed affiliation with the Dartmouth Hitchcock Clinic.

Anti-abortion leaders claim the partnership could lead to abortions being performed at the Manchester hospital. Lamontagne said the proposal specifically would keep that from happening.

The other two major Republican Senate candidates – Bill Binnie, of Rye, and Jim Bender, of Hollis – support abortion rights. Among lesser-known Republican hopefuls, Tom Alciere, of Hudson, and Gerard Beloin, of New Boston, oppose abortion rights, while Dennis Lemare, of Durham, supports them.

Kevin Landrigan can be reached at 321-7040 or