SOURCE: Concord Monitor

By ERIC MOSKOWITZ
The House voted 226-130 yesterday to repeal the state's parental-notification law, a contested abortion statute that was rejected by the U.S. Supreme Court last year and remains in legal limbo.

Repeal supporters said the state needs to delete the unconstitutional statute to protect the reproductive rights of young women and end the protracted dispute over the law. They expect the repeal to also pass in the state Senate and reach the desk of Democratic Gov. John Lynch, who has said he would sign it.

Opponents of the repeal argued unsuccessfully for preserving the law with amendments that would tweak its unconstitutional components. Some who wanted to keep the law argued that it was a pro-parents measure, not an abortion issue or a partisan matter. But others criticized the new Democratic majority or took aim at what they called an abortion "industry."

The prime sponsor of the repeal, Rep. Liz Hager, said the Legislature's passage of the parental-notification law by a narrow margin in 2003 marked an aberration in a history of bipartisan support for abortion rights in New Hampshire.

"This Legislature had always been pro-choice, until this one bill that they passed four years ago, when (then-Gov.) Craig Benson was working so hard to have it pass," said Hager, a Concord Republican who serves on the board of directors for NARAL Pro-Choice America. "I'm proud that it was such a huge vote and a bipartisan vote (today), because I think it returns us to saying this is not a business for government, this is a business for women, their families and their medical consultants and whoever else they choose to involve."
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Moments after the vote, former representative Phyllis Woods - a Dover Republican who sponsored the notification law in 2003 - descended the steps from the House gallery with tears in her eyes. "They just killed my baby," Woods said.

Woods said voters invited the repeal by electing a Democratic majority to the State House last year. She called it an unintended byproduct of an anti-war, anti-President Bush electorate that was motivated in 2006 to elect Democrats to Washington.

"The parents are the big losers here," Woods said. "I hope they get the message. I hope they understand that as they filed their protest votes against the war and voted for overwhelming Democrat majorities in the House and the Senate they realize this is part of the price, this is one of the results. I don't know if that's what they intended."

New Hampshire's notification law requires abortion providers to notify at least one parent 48 hours or more before performing an abortion on a minor. It allows providers to ignore the notification requirement only to prevent the death of the pregnant teenager. The law has never taken effect because Planned Parenthood and other opponents challenged it in court immediately after its passage.

The U.S. District Court in Concord ruled the law unconstitutional, and the 1st U.S. Circuit Court of Appeals in Boston upheld that ruling. The Supreme Court accepted the state's appeal and ruled that the law's lack of a health exception made it unconstitutional. The high court returned the case to U.S. District Judge Joseph DiClerico, charging him with determining whether the law should be revised or struck down altogether.

DiClerico last month decided to postpone his decision to see if the Legislature would act first.

Supporters of the repeal said lawmakers should make the case moot, ending an appeal that has consumed the time and resources of the attorney general's staff and removing the decision from the judge. If notification advocates want to try to craft a constitutional notification law, they should start from scratch with a new bill, not try to tweak a flawed law on the floor of the House, repeal supporters said.

The House Judiciary Committee presented lawmakers with a 12-5 recommendation to repeal the law. Rep. Steve Shurtleff, a Penacook Democrat, spoke on behalf of the committee majority, saying that the issue to be decided was not first and foremost an abortion or family-values matter.

"The real issue is about a (law) flawed from its inception that is being held in the courts and that will be decided by the courts unless we do the right thing now and repeal it," he said. "An unconstitutional law should not be the foundation for any legislation. Contrary to what the opposition states, there is no easy, quick fix to this particular law that will make it constitutional."

Forty-four states have notification laws on the books, though nine of them - including New Hampshire's - have been found unenforceable.

Rep. Fran Wendelboe, a New Hampton Republican, proposed an amendment that would keep the existing law but add a provision allowing abortion providers to avoid notification if the delay would create irreversible harm "to a major bodily function." A broader exception would be open to interpretation that could effectively nullify the parental-notification law, she said.

That amendment - which Wendelboe said was based on the Pennsylvania act upheld by the Supreme Court in its 1992 Planned Parenthood v. Casey decision - failed on a 213-135 vote.

A subsequent amendment from Rep. Neal Kurk, a Weare Republican, would have allowed for a broader medical exception. "I hope that it will satisfy those of us who really want to do something to make sure that as much as possible families are involved in those decisions," he said. That amendment failed, 222-129.

Though most foresaw the final outcome, lawmakers debated the issue for two hours anyway. Many of the speakers issued last-minute cautions to their colleagues. Rep. Jim Garrity, an Atkinson Republican, said a vote to "repeal this law is essentially saying to the parents of New Hampshire, 'Take a hike!' " Rep. Al Baldasaro, a Londonderry Republican, sounded off about "special interest groups" and abortion-rights "vultures" who "prey on little girls."

After the final vote, several dozen opponents of the repeal rose from the Republican side of the hall to submit formal protests to the speaker, one by one. In their written protests, the lawmakers contended that the repeal bill "endangers the children of this state," "imputes incompetence, irresponsibility and ill parenting skills to all parents," and is otherwise "repugnant to the New Hampshire Constitution."

Later, some Republicans who supported the repeal seemed embarrassed by their colleagues' rare protests, which took 20 minutes, especially since the opposition had already been recorded on a roll call. "I hope you saw that all the Republicans didn't stand up," said Rep. Priscilla Lockwood, a Canterbury Republican. "For a (law) that's hung up in court, it just seemed kind of ridiculous."

Supporters of notification see the Senate as a last chance to avoid repeal.

"From my vantage point, it's not over," said Sen. Joe Kenney, a Wakefield Republican, who plans to introduce the Wendelboe amendment in the Senate. "There are thousands of parents in the state of New Hampshire whose voices weren't heard today in the House, and they surely will be heard in the Senate."

But Senate President Sylvia Larsen, a Concord Democrat, said she expects the repeal to pass the 24-member Senate. "I applaud the House for moving on this quickly and saving us lots of legal costs," she said.