Abortion law repeal on table

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Abortion law repeal on table

Lawmakers weigh partial or full rollback

By Sarah Liebowitz, Concord Monitor, February 3 2007

New Hampshire's parental-notification law will return to the spotlight next week, as lawmakers hold the first hearing on a bill to delete the controversial abortion statute. And when the hearing opens, some lawmakers will be debating an additional question: Whether state law should include notification, either through an amendment to the repeal or in separate legislation.

The repeal would end the legal dispute over the law, which has been rejected by two federal courts as unconstitutional. At issue is the fact that the law doesn't exempt minors from notifying their parents before getting an abortion, even if their health is at risk. Currently, the law is in the hands of U.S. District Court Judge Joseph DiClerico, who this week decided to postpone deciding the statute's fate until lawmakers consider the repeal.

Supporters of the bill hope that with Democrats newly in control of the Legislature, the proposal will pass both the House - where the bill begins - and the Senate. The Legislature's makeup is a reversal from 2003, when Republicans were in the majority and then-Republican Gov. Craig Benson signed the bill into law.

"I think that the straightforward repeal of the current unconstitutional law has a very high probability of passing both houses and being signed by the governor," said Sen. Peter Burling, a Democrat from Cornish and one of the bill's sponsors. "To do anything else is a waste of time, judicial energy and resources of the state."

Many Democratic leaders support repealing the entire law, which requires minors to tell a parent or judge before having an abortion. "We don't need the state to be wasting its resources defending an unconstitutional law," said Senate President Sylvia Larsen, a Concord Democrat. And House Speaker Terie Norelli, a longtime proponent of abortion rights, supports the repeal but doesn't plan to lobby for it.

Behind the scenes, however, some lawmakers have been discussing whether the parental-notification law should be repealed altogether or amended to include some sort of adult notification. Democratic Gov. John Lynch supports abortion rights and in 2005 filed a friend-of-the-court brief asking the U.S. Supreme Court to strike down the law. He isn't certain, however, that a full repeal is the best course. In recent weeks, Lynch has met with lawmakers about how to address the issue, said Lynch spokesman Colin Manning. "The governor feels the current law is flawed, as the Supreme Court has agreed," Manning said. But Lynch also "believes parents should be involved, but we have to recognize that is not possible in every situation," Manning recently said.

But many lawmakers and abortion rights activists said yesterday that the primary focus should be on erasing the current law. "Many of us prefer to see a repeal bill pass with no changes, no amendments," said Larsen, whose comments were echoed by Burling and Sen. Maggie Hassan, Democrat of Exeter. "If there need to be other discussions about how you encourage parental involvement or involvement by another adult, those could come later."

Before lawmakers tackle a new adult-involvement bill, they should focus on the repeal, said Dawn Touzin, vice president of public policy and government affairs for Planned Parenthood of Northern New England.

"People could get distracted in various directions, and we could still end up with an unconstitutional law," Touzin said. "To base whatever discussions one might want to have about adult involvement on the foundation of a flawed law does not make sense."

The statute's legal saga began in 2003, when Planned Parenthood challenged the law. The U.S. District Court in New Hampshire deemed the law unconstitutional because it lacked a health exception and only exempted a minor if her life was in jeopardy or she received approval from a judge. The 1st U.S. Circuit Court of Appeals in Boston later upheld that decision.

Attorney General Kelly Ayotte, who was appointed by Benson, appealed the ruling to the Supreme Court. One year ago, that court returned the law to the U.S. District Court because it lacked a health exception. DiClerico's task, according to the Supreme Court, was to determine the intent of the Legislature: Would lawmakers have preferred a notification law that had been revised to include a health exception, or no law at all?

Advocates of the repeal say that supporters of the current law deliberately excluded a health exception to test the Supreme Court, and therefore that the entire law should be struck down. "I think that it's pretty clear that the original intent of the sponsors of the parental notification was not to be constitutional, that it was a direct challenge to Roe v. Wade," said Rep. Cindy Rosenwald, a Nashua Democrat who is a co-sponsor of the repeal.

"We know this law is unconstitutional. I don't think it really is the will of New Hampshire," Rosenwald added, citing the numerous occasions when lawmakers rejected notification bills. The 2003 law, which Benson promoted, passed by six votes in the House and one in the Senate.

But Ayotte asked DiClerico to delete only the unconstitutional portion of the law - the lack of a health exception - and keep the remainder of the statute. Planned Parenthood wanted DiClerico to do away with the law, allowing lawmakers to craft a new statute.

After Rep. Liz Hager, a Concord Republican, introduced the bill to repeal the parental-notification law, DiClerico decided to postpone a decision. "If House Bill 184 is enacted into law, this case will be rendered moot," DiClerico wrote this week. "If it is not enacted into law, this case will proceed; if the parental notification law is amended, then the legal landscape of this case may well change."

Despite the recent change in the makeup of the Legislature, supporters of the parental-notification law plan to make their voices heard.

"I think many of us will take time to go and let the committee know that we would take umbrage" if the law is repealed," said Barbara Hagan, a former state representative from Manchester and a longtime abortion opponent.

"There's a schizophrenic disconnect here. In all other instances with respect to health issues, parents have a say," she said. "To take this one issue and say, 'You have no right to know,' to a parent is extremely offensive."

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