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N.H Supreme Court hears anti-abortion group’s appeal

A prominent anti-abortion group argued yesterday before the New Hampshire Supreme Court that its objection in 2012 to the licensing of abortion clinics in the state was errantly dismissed by a regulatory board.

The group, New Hampshire Right to Life, has insisted since 2012 that the clinics are no longer eligible to distribute prescription contraceptives because their funding contract with the state Department of Health and Human Services ended in 2011, and because they failed to establish approved protocols for dispensing the drugs.

Their case before the court, however, touches none of that. Instead, justices have been tasked with deciding whether the state Board of Pharmacy unfairly barred the group from contesting the renewal of the clinics’ distribution license.

Right to Life objected to the renewal multiple times after it learned that Planned Parenthood, which operates the clinics, had begun contracting with the federal government rather than the state. The group argued that New Hampshire law required that a state contract be in place for a distribution license to be granted, and that the board had therefore erred when it renewed Planned Parenthood’s.

In September 2012, three months after the license was initially set to expire, the board finally voted to renew it. Right to Life protested and requested a rehearing, which the board rejected, reasoning that the group had no direct legal interest in its decision. On appeal, the group contends it was not given adequate notice of the board’s rejection, and was never afforded the chance to comment on it.

Justice Robert Lynn said he had “significant doubts” that the group had a right to take part in the licensure beyond submitting its initial complaint, or that the high court had the power to decide otherwise. When Justice Carol Ann Conboy related the issue to a hairdresser trying to renew her license despite a customer’s complaint that she had recently burned her hair off, Lynn said he could think of a better analogy.

“This isn’t somebody whose hair was burnt off by the hairdresser submitting a complaint,” he said. “It’s her neighbor 5 miles down the road that said, ‘By the way, I understand my neighbor 5 miles down the road had her hair burned off, and I want to intervene.’ ”

Right to Life’s attorney, Michael Tierney, insisted they did have an interest. “The interest is that the boards are fairly and equitably and fully regulating abortion clinics that are distributing dangerous drugs,” he said.

“And that would be the same argument anybody else could make,” Lynn replied.

Lynn said he had reservations about following Tierney’s line of argument, because allowing any third party to intervene in a regulatory body’s actions could set a dangerous precedent.

“Under that view, we basically get to run the state, don’t we?” he said. “Anytime anybody complains that some branch of government has done something wrong, it comes up here and we get to decide. We’re like the council of revision.”

Justice Gary Hicks and Chief Justice Linda Stewart Dalianis recused themselves from the hearing. A court spokeswoman did not have an immediate reason last night for the disqualification.

Right to Life has a separate complaint pending in Cheshire County Superior Court on the board’s decision to renew Planned Parenthood’s license last year. A hearing in that case is scheduled for next week, Tierney said.

(Jeremy Blackman can be reached at 369-3319, or on Twitter @JBlackmanCM.)

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