Our Turn: MacDonald poses risk to basic liberties

Published: 1/19/2021 6:01:10 AM

That Gordon MacDonald should serve as chief justice of the N.H. Supreme Court is a very bad and dangerous idea. He should not be placed in the position that is ultimately responsible for protecting rights that he himself does not believe in.

Attorney General MacDonald would pose a grave risk to basic liberties were he to be confirmed by the Executive Council.

Gov. Chris Sununu’s re-nomination of Attorney General MacDonald is no less alarming for the fact that Sununu has held the seat open for nearly two years after his initial attempt to place MacDonald on the Supreme Court lost in a 3-2 vote of the Executive Council.

What makes the prospect even more terrifying now than it was in 2019 is that during the interim, threats to fundamental constitutional protections, including abortion, marriage equality, and voting rights, have only increased at the federal level. With three Trump appointees now on the U.S. Supreme Court, these and other constitutional rights are at the whim of a solid 6-3 conservative majority that has already signaled its destructive intentions.

When (and it is when, not if) abortion rights and other protections are no longer recognized under the U.S. Constitution by this refashioned U.S. Supreme Court, it will be up to the states to define and defend them under state constitutions. The very rights we once shared as Americans will now depend on individual legislatures, governors, and state courts throughout the nation.

Already many states have moved to redraw rights and restrictions around abortion. States such as Massachusetts and New York are codifying, and in some cases expanding, Roe v. Wade, so that its safeguards are clearly stated in laws on the books. Other states, such as Mississippi and Alabama, are moving in the opposite direction, passing laws to severely restrict, and in some cases outlaw, abortion access outright.

In the future, challenges to these laws will inevitably be brought in the courts of these and other states, and the state judges sitting on those courts will render decisions for each state’s citizens.

In New Hampshire, abortion rights could go either way. Our state constitution has yet to be tested or interpreted regarding protections for reproductive rights. As chief justice, MacDonald would lead the institution charged with defining those rights.

MacDonald has spent his career assisting and representing opponents of abortion. From his early years drafting bills outlawing abortion for U.S. Sen. Gordon Humphrey to his long-running representation of the Catholic Dioceses of Manchester to his participation in the drafting of a U.S. Supreme Court amicus brief in support of New Hampshire’s unconstitutional parental notification law, MacDonald has always been on the side of those hostile to reproductive freedoms.

When asked about these activities during his prior nomination hearing, MacDonald said only that Roe v. Wade was settled law and he would follow precedent.

Well, what happens when Roe v. Wade is overturned and there is no precedent to follow? At that time, New Hampshire citizens will be left to whatever state constitutional protections are recognized (or not!) by the state Supreme Court.

No one should blindly trust Gordon MacDonald to interpret our constitution in a way to protect women’s personal freedom to control their own bodies when so many of his professional positions have worked to undermine or eliminate that freedom.

If MacDonald was comfortable dedicating his time and energy to tearing down reproductive rights, how can we possibly believe he will construe the New Hampshire Constitution’s equal rights or privacy provisions so as to honor them?

We must face facts. The stark reality is that Gordon MacDonald should not be entrusted with this critically important responsibility.

While some in the legal establishment may stand behind him and the governor may now have the Republican votes to confirm him on the Executive Council, MacDonald as chief justice would threaten the future of our most fundamental reproductive freedoms. An ardent opponent of abortion rights would lead the very court whose job it will be to protect those rights. Dangerous indeed.

(Terie Norelli is the former speaker of the N.H. House of Representatives. Susan Arnold is the former president of NARAL Pro-Choice N.H.)


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