How PPNNE got its Manchester building – and how a Federal Court helped

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Part 1: the local view, from the prolifers on the scene

These are excerpts from an article in the July 2001 edition of New Hampshire Right to Life News. I was on the NHRTL board at that time, and Planned Parenthood of Northern New England was trying to set up shop in Manchester. The article I am excerpting was written by Manchester pro-life activists who were involved in the fight to prevent anyone from opening an abortion facility on a Manchester residential street. My own comments are set off in brackets.

Planned Parenthood vs. City of Manchester and NH Right to Life, from July 2001 NHRTL News

[no byline; article is accompanied by photos of Barbara Hagan, Rep. Kathy Souza, and Betty Breuder, calling them the “leadership team opposing Planned Parenthood’s proposed abortuary in Manchester”]

It was over a year ago in April of 2000, when Dick Anagnost, a Manchester developer and Steve Schubert, his partner, hired an Engineer to obtain a variance changing a former auto parts/retail building. The building was located in an R3 Zoned area of the city.This meant that the area was zoned for multi-family residential. The auto parts retail had been vacant for some time. Still, in order to obtain a different use for the building, the owners needed a Variance. The street in question is Pennacook Street located off Elm Street in Manchester’s northern end.

If you travel to Pennacook Street, you can see that it is residential, with many multi-family dwellings.There are a few businesses, but even they are considered low-key. There is an accountant on the corner of Pennacook and Chestnut, a deserted gas station on one of the corners of Elm and Pennacook, and a small variety store up the street. Basically, the building in question faces several multi family residential dwellings. There are numerous small children that play on the sidewalks and in the street. There is no buffer zone, per se. The building basically sits next to the sidewalk that abuts the street. There is also an off-street parking area.

So, the process began. The Zoning Board met and heard the petition of the owners of the building at 24 Pennacook Street to convert the auto parts building into a “4.03(28)b medical use office.” This italicized phrase is extremely important to remember. Manchester has many different zoning variances that are all given numbers and definitions. This particular number, 4.03(28)b refers to a “Business, professional and general offices, including but not limited to: Bank, broker, employment agency, insurance, lawyer, doctor, etc.”  Nowhere in this definition does the phrase “medical offices” appear.

The phrase “medical offices” is part of another Variance definition, with a totally different meaning and impact. Under the former definition 4.03(27), one will find “Offices of licensed medical or dental practitioners, but limited to general out-patient care and diagnosis of patients.” This means medical offices with outpatient care, and could include walk-in patients who do not have appointments.

The use of the building in the request, as presented to the public and the Zoning Board, would be considered on how it impacts the neighborhood that is already there. In order to obtain any variance, the owner of the building has to meet several important criteria. These criteria are: (1) The proposed use would not diminish the surrounding property values; (2) That granting the Variance would be in the public interest; (3) The denial of the Variance would mean unnecessary hardship to the owner because he could not use the building for anything else; (4) That substantial justice would be done by granting the Variance; and (5) That granting the Variance would not be contrary to the Spirit of the Zoning Ordinance.

The owners of the building were very clever, or so they thought. They hired an agent by the name of Todd Connors, to fill out the Variance Application on their behalf. An Engineer by the name of Ken Rhodes gave the presentation to the Zoning Board. The request they made for the variance deliberately mixed two different definitions, that of 4.03(28)b and 4.03(27). The Zoning Board, apparently, looked upon the variance request as for a doctor’s office. Mr. Anagnost, one of the owners, did show up late to the Zoning Board hearing on the night of April 5, 2000, but he offered no information.

When directly asked, “What was going in there?” Neighbors were told, “two or three doctors (general practitioners) and their staff.” This answer is in line with the 4.03(28)b Variance definition. Therefore, no neighbors felt it necessary to come to the Variance hearing. The new use, as stated, did not pose any threat to the peace and security of the neighborhood. The Zoning Board asked the same question. “What exactly is going in there?” The Engineer replied, “two or three doctors … and their staff.” The ZBA granted the variance.
It was all very quiet in the neighborhood, until the real identity of the real use of the building was revealed. Up until the Variance had been granted, no mention was made of Planned Parenthood or a clinic.

You have probably read the accounts in the Manchester Union Leader, Concord Monitor and other newspapers. [Note: the Union Leader broke the story of bulletproof windows being installed at 24 Pennacook Street during this time, which gave rise to speculation about the nature of the business about to move in.] You have no doubt heard Pro Life Activists, Barbara Hagan and Rep. Kathleen Souza discussing the issue on local radio and television programs. They have filed an appeal in the Hillsborough County Superior Court challenging the Variance and alleging that fraud may have been involved….Remember that no Building Plan with bulletproof glass was presented to the public until after the Variance was granted and the building permit application was submitted.

Planned Parenthood wasted no time in Manchester, New Hampshire. They were not about to be made to follow the Zoning Laws. They are afraid of the action Hagan and Souza have filed in Hillsborough County Superior Court challenging the Variance. Planned Parenthood immediately grabbed the spot light and went to Federal District Court in Concord, New Hampshire to try to claim their Civil Rights had been violated.

Manchester city officials have not been very dynamic in enforcing the zoning laws or fighting this clinic….The City Attorney …supposedly forgot to file papers in Federal Court and almost lost the case on default. In his second order from Judge McAuliffe, he called the City Attorney “mute” with respect to a defense against the claims Planned Parenthood and the owners of the building made. The City offered no defense. They offered no witnesses. They offered no documents to tell the judge why Planned Parenthood could not have the use of the building at 24 Pennacook Street. The Judge had no choice, but to allow Planned Parenthood the rights to regain its building permits and continue building, for now.

Fortunately, New Hampshire Right to Life also followed Planned Parenthood into Federal Court. We asked the judge to allow us to intervene and participate in the case. As one of our reasons, we told the judge we felt the City of Manchester would not put up a very good fight.

The judge allowed us to intervene, but neglected to mail us our notice to the April 20, 2001 hearing before the Court. It was not good news, but it provided us with an opportunity to ask the Court to reconsider its decision to let Planned Parenthood go forward with the 24 Pennacook Street project. We have explained to the Federal Court that this is not a matter of Civil Rights. It is a matter of the wrong Variance. We are currently awaiting his reconsideration, and thank everyone for his or her continued prayers. [Unfortunately the reconsideration did not change the original decision.]

On April 27, 2001, Souza and Hagan, and the abutters to 24 Pennacook Street appeared in Hillsborough County Superior Court. The Judge in Superior Court, Arthur Brennan has already ruled that a “Family planning clinic appears to be a different use.” His recent decision, following the April 27 hearing is a green light in our favor.

…[W]e must prove that the applicant did not provide reasonable warning so that abutters or interested parties could have knowledge enough to appear at the ZBA hearing and object. We have to prove that the applicant knew Planned Parenthood was going to be the tenant. We also must prove that Planned Parenthood is a legally different use than that which is provided in the Manchester Zoning Ordinance definition.

If the notice to the Public was sufficient, then our petition will be denied by the Superior Court. If the notice was not sufficient, and there was fraud, then the Variance is void and Planned Parenthood will not be allowed to open on Pennacook Street. ..

[Note: as we now know, and as is outlined in the federal order below, PPNNE was indeed allowed to open on Pennacook StreetThe federal court order on civil rights grounds superceded any state Superior Court action on procedural grounds.]

Part 2:  United States District Court preliminary injunction

The case is Planned Parenthood of Northern New England and 24 Pennacook Street LLC v. City of Manchester (not reported in F.Supp.2d).  The full preliminary ruling, handed down 4/27/01, is seven pages long. These brief excerpts are from the court’s preliminary granting of the injunction sought by PPNNE in U.S. District Court. While intervenor status was granted later to some pro-life parties as described in part 1 above, the court’s final order was in PP’s favor. The following excerpted text is from the preliminary order, without edits (except for ellipses) or comment. Footnotes are omitted.

…Plaintiffs’ application for preliminary injunctive relief was heard on April 20, 2001….[T]he following pertinent facts were developed. The Owner obtained a variance under under the applicable city zoning ordinance which allowed the building at issue (formerly used as an auto parts store) to be used for “medical offices.” The city contends, however, that it was under the impression, in granting the variance, that the permitted “medical office” use would involve two to three “general practitioners” and associated staff. It further contends that a restriction to that effect is necessarily implicit in the variance actually issued. (On its face, the variance is not conditional.) After obtaining the variance, the Owner entered into a lease with PPNNE for most of the building’s space. PPNNE and the Owner also entered into an agreement to fit the leased space for a medical office use.

Building plans were submitted to the Building Commissioner, who, after reviewing the plans and insuring compliance with the medical office use authorized by the variance, issued a building permit. After obtaining the building permit, the Owner and PPNNE made arrangements to finance and complete the necessary construction work.

Several months later, in the fall of 2000, PPNNE publicly announced its intent to occupy the building and provide medical services to the residents of greater Manchester, including family planning and, at some future date, abortion services. That announcement provoked some public opposition to Planned Parenthood’s use of the building, and various people sought relief from the Zoning Board of Adjustment. By a divided vote, the ZBA revoked the building permit on January 3, 2001, after hearing from interested parties and members of the public. Plaintiffs then filed this suit seeking to remedy what they see as an unconstitutional deprivation of federal rights under color of state law.

…Discussion: The first point of significance is that the ZBA’s reasons for revoking the building permit are unknown, because they are undisclosed. The board made no findings of fact and provided no explanation for revoking the permit, either orally in the record (in the minutes), or by written decision.

…The next point of significance is (and the city agrees) that the variance permitting the Owner to use the property in question as a medical office remains in effect, unmodified….[T]he refitting plans submitted by the Owner and PPNNE to the Building Commissioner describe work that, when completed, will be entirely consistent with the medical office use authorized by the variance, as the city itself construes the variance.

The city’s counsel also agreed, necessarily and correctly, that the variance sought for the medical office use could not have been lawfully or constitutionally denied based merely upon the identity of the Owner’s tenant, Planned Parenthood of Northern New England, nor on the basis that abortion services would be provided as part of the “general practice” of medicine on the site (whether by PPNNE or a “general practice physician”). The minutes of the January 3, 2000, ZBA meeting suggest some confusion on the part of ZBA members as to the effect of constitutional limits on their municipal authority – but it is by now clear that personal opposition to abortion or personal disapproval of Planned Parenthood’s activities cannot serve as a lawful basis for denying a variance or making other zoning decisions.

…Irreparable injury: The ZBA’s decision to revoke the building permit significantly impacts upon plaintiffs’ fundamental and constitutionally protected rights, and the burden imposed is more than de minimus. By revoking the permit, the ZBA halted construction of medical offices which are entirely consistent with a currently authorized use of the building pursuant to the existing variance – even as the city perceives and construes that variance.

The ZBA’s decision to revoke the building permit unquestionably results in irreparable injury to plaintiffs, as well as PPNNE’s patients. By revoking the permit, the ZBA significantly interrupted and delayed PPNNE’s patients’ ability to consider and obtain family planning, contraceptive, and at some point, abortion services, by delaying PPNNE’s (as yet) legitimate occupancy of the building. Because the burden imposed on plaintiffs’ fundamental rights is more than de minimus, strict scrutiny applies. …Absent injunctive relief, plaintiffs’ protected constitutional rights would continue to be abridged and plaintiffs (and their patients) will continue to suffer irreparable injury.

…Accordingly, the City of Manchester, its Zoning Board of Adjustment, their employees, agents, servants, attorneys, and anyone acting for or in concert with them, are hereby preliminary enjoined from:

  1. revoking the building permit issued to the plaintiff Owner;
  2. seeking to enforce any cease and desist order issued relative to construction carried out pursuant to the building permit previously issued to the Owner;
  3. interfering with or frustrating completion of the construction project authorized by the previously issued building permit; and
  4. taking any enforcement action whatsoever based upon or related to the ZBA’s revocation of the previously issue building permit.

SO ORDERED.

Report from Maine: Portland City Council votes to “zone out” prolifers

According to the Twitter feed of Planned Parenthood of Northern New England (@ppnne), the Portland City Council voted unanimously this evening to impose what PP calls a “patient safety zone” outside abortion facilities.

Also known as buffer zones, such ordinances typically impose a perimeter around abortion facilities to keep peaceful pro-life prayer witnesses at a distance.

The sketchy report provided by the tweets indicates that abortion advocates were well-represented at the meeting, which included public testimony. The Council meeting was scheduled to begin at 7 p.m.; testimony reportedly ended shortly after 10; the Council vote was concluded by 10:25.

The Councilors added an “emergency” provision that makes the ordinance effective immediately.

The United States Supreme Court will rule within the next few months on the constitutionality of Massachusetts’s buffer zone law. The Concord, New Hampshire city council recently took a wait-and-see attitude to a petition for a zone around “reproductive health facilities” in that city.

Pro-life doctors, ADF call on NH to investigate PPNNE’s use of chemical abortion drugs

Does Planned Parenthood of Northern New England prescribe chemical-abortion drugs in a manner inconsistent with Food and Drug Administration protocol?

The American Association of Pro-Life Obstetricians and Gynecologists thinks an investigation is in order. Joined by the Alliance Defense Fund, AAPLOG sent a letter on September 4 to the New Hampshire Board of Medicine and the New Hampshire Board of Nursing. ADF issued a press release summarizing the letter and the reasons behind it.

If I may be flippant for a moment, here’s my paraphrase of the AAPLOG/ADF letter to the Boards, which I have read (all 20 pages): abortion’s legal, and we all know it. Even so, would PP mind terminating pregnancies in a way that damages women as little as possible? It looks terribly like money is trumping health here.

End of paraphrase. You can read the letter in full here.

Who kicked up this fuss, anyway? Michael Tierney, New Hampshire attorney and former Executive Council candidate. He knows that the FDA protocol for the use of chemical abortion is to use it no later in pregnancy than 49 days after a woman’s last menstrual period. He also knows that the Planned Parenthood of Northern New England web site indicates that women shouldn’t use this method after more than 63 days. (I accessed the web page today, 9/6/13, to confirm that PP is still using that language.) Tierney brought this to the attention of the New Hampshire Board of Pharmacy. He then called on AAPLOG and ADF (with which he is an allied attorney) to contact the boards of medicine and nursing to urge an investigation.

Tierney’s concern: “Planned Parenthood’s main concern should be the health and safety of women, not its bottom line.”

Health before profits: what a concept. Unfortunately, with the wall of secrecy around the abortion industry – a wall that too many New Hampshire legislators and the current governor fight to preserve – no one in this state has any proof that women are safe when they go for an abortion. Of course, that means that no one has objective data in this state to prove that women are harmed in this state, either. That’s the way New Hampshire abortion providers like it. I’ve heard their testimony in Concord year after year. Morbidity and mortality following a “medical” procedure is a public health issue, unless that “medical” procedure is abortion. I use quotation marks because a small part of me still wants to think of medicine as a healing art, despite all current evidence that it has been reduced to a technical skill. Abortion has nothing to do with healing.

“Gynotician” is the latest epithet PP has coined to throw at lawmakers who dare to demand that abortionists be forced to account for women’s health. Imagine the nerve of some people, wanting objective information about how abortions are done and what happens to a woman’s health after abortion. PP knows that New Hampshire will never pass a stats collection law while there are legislators who dislike being called names. The abortion industry is not self-policing. Ask Kermit Gosnell.

Thank God that there are people in New Hampshire like Michael Tierney willing to force the question. Doctors at AAPLOG are willing to speak out about how medicine is practiced by abortion providers (an increasing number of whom are not M.D.s). Does PP have a catchy name for boards of pharmacy, medicine, and nursing that choose to investigate how PP prescribes drugs? We might find out yet.

A bit about the American of Pro-Life Obstetricians and Gynecologists: AAPLOG is a recognized professional interest group within the larger American College of Obstetrics and Gynecology. It was founded a few decades ago by a gynecologist who was alarmed by ACOG’s willingness to espouse abortion-on-demand. That gynecologist was Matthew Bulfin, M.D. of Fort Lauderdale, Florida. He was my mother’s doctor.

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Retroactivity, and how not to de-fund an abortion provider

Part 2 of 2. For part 1, with news of a planned “retroactive” grant of public funds to Planned Parenthood of Northern New England, click here

Since part 1 of this post, New Hampshire’s budget has been passed by the House and Senate. The extra half-million dollars for family planning added by the governor on top of DHHS’s $344,000 request went through without a hitch.Regarding the extra $500,000, Councilor Colin Van Ostern said “it doesn’t seem like one of the hot spots and that’s good.” PPNNE for once kept a low profile as the budget was crafted. That will apparently pay off. PPNNE’s status as the principal provider of abortion in New Hampshire is not a problem as far as the current Governor and Council are concerned.

Recall that PPNNE’s Title X contract was rejected by the then-Executive Council in 2011, while contracts with ten other agencies were approved. Since then, PPNNE has been covering about 57% of Title X-eligible family planning clients with funds it has received directly from the federal government. Last week, with the Executive Council looking very different since the last election, the newest round of Title X contracts was approved. The proceedings of that meeting revealed that while PPNNE had no contract in the mix, they would be getting Title X money soon.

The ten more-or-less non-controversial Title X agencies are listed in this letter.  Combined, these agencies serve the other 43% of Title X-eligible clients in the state.

At last week’s Executive Council meeting, described in part 1,  Commissioner Nick Toumpas of the Department of Health and Human Services assured Councilor Chris Pappas (D-Manchester) that Planned Parenthood of Northern New England will be reintegrated into New Hampshire’s Title X program at some future date, with payments retroactive to July 1 of this year. The terms of the current financial arrangement between PPNNE and the federal government for family planning work were not entered into the public record at last week’s meeting; in Commissioner Toumpas’s words, “It’s not appropriate for me to know what they did.” The end date for that arrangement is thus unknown to me at this point. Will “retroactive” payments from the state overlap with payments from the federal government?

That was evidently not on the minds of the Executive Councilors last week. The audio recording of the meeting is here; I made the transcript used below. Comments in brackets are my own, and I have emphasized in bold print certain statements from the meeting.

Pappas praises “statewide approach”

Commissioner Toumpas correctly calls the current arrangement a “bifurcated” family planning program, with some agencies getting state-administered funds and one getting direct federal funds. He confirms that no one has gone without family planning services despite the 2011 “hiccup” in state-level funding (using Councilor Pappas’s word).

Pappas: Many of us want to see a statewide approach once again. I think it treats everyone fairly equally. I’m concerned with my area being underserved with contracts, and [I’m] just kind of wondering what’s coming up. … There’s no need to hold this thing up, you know, anticipation of those dollars. I do hope we get to the day once again where family planning money is treated on a statewide basis.

Toumpas: [These are] vital organizations for the delivery of these particular [family planning] services. It was a challenging, uh, time, uh, a couple of years ago as we went through that particular process [the rejection of the 2011 PPNNE contract], because of the people that are being served by this, we didn’t want to have any interruption in services. To the credit of Planned Parenthood, when the contract was not passed, they continued to provide those services. They didn’t have to do that but they did. And I’m very appreciative of the fact that they did that. But again we still have good working relationships with them and we’ve been working with them on a different benefit that’s going to go into place on July 1, a limited Medicaid benefit that is outside of anything that is called Medicaid expansion.

I recall that in the immediate aftermath of the 2011 vote, there was a graphic on a PP web site – I can’t remember if it was PPNNE or PP Action Fund – counting the number of people “denied” family planning services after the Executive Council’s action. Commissioner Toumpas seems to think no one was turned away. No one on the Council last week disputed his assertion that PPNNE “continued to provide those services” after the 2011 vote.

Councilor Van Ostern chimes in

Councilor Colin Van Ostern (D-Concord) was elected to his District 2 seat last November. He ran as an unapologetic supporter of Planned Parenthood, and benefited from a gerrymandered district with new boundaries drawn after the 2010 census. He sailed in with 58% of the vote, which was not hard for a Democrat to do, with Concord and Durham and Keene to work with.

Executive Council district 2, outlined in red
Executive Council district 2, outlined in red. NHDOT map; district outline added by Ellen Kolb.

He was careful at the June 19 meeting to confirm the numbers involved in Title X work in the state, although neither he nor Councilor Pappas asked any follow-up questions about the Medicaid arrangement with PPNNE to which Commissioner Toumpas referred. Van Ostern took time from running the numbers to take a swipe at his predecessor.

Van Ostern: …I probably would say it a little less politely than Councilor Pappas did, but I think the Council botched this two years ago, and frankly I’m frustrated that it’s gonna take us until 2016 to get back to a system that worked well I think for decades. Frankly, I don’t think it’s a coincidence that the three Councilors who aren’t here with us now are the ones who voted to complicate it a couple of years ago…. [unclear] make sure I understand [unclear], just because we had discussions about it yesterday. So your intention is that at some point in the future, a few months from now, we will have awarded all of the funds that are available from the state for family planning, and at that point, whatever that total bucket of dollars is [over $800,000 with the now-passed budget], that bucket will be equally distributed across the state based on number of patients?

Toumpas: It will reflect the intent of what the legislation is, how that, what that equivalent and proportional piece of it means. There’s, uh, there’s one part of it that says equivalent, which is sort of across the board for everybody, and then there’s the proportional that I think is based on the number of clients.

Van Ostern: Once the budget passes we can have a check-in on this.

Toumpas: …My sense is that we would move on that relatively quickly.

Neither Toumpas nor the Councilors clarified what legislation they were referring to when they talked about “equitable and proportionate” family planning funding.

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Epilogue: factors affecting public funding of New Hampshire abortion providers

Elections matter. The June 19 Executive Council meeting showed clearly that there simply is no advocate in the executive branch for pro-life New Hampshire taxpayers who would like to be rid of an enforced investment in New Hampshire’s biggest abortion provider. On the legislative side, HB 228, an attempt to keep state funds away from abortion providers, was considered for 16 months until it died on the Senate table in April 2012. On the bright side, five of the six sponsors of the bill ran for re-election last year, and four of them won.

Appointments matter, too. Title X is handled for the most part by people appointed by the Governor and Council. Bureaucrats, in other words. They answer to the Council, not the voters.

Relationships matter. Developing constructive relationships and trust with policymakers takes time. When a rep hears information about abortion funding from someone she likes and trusts, she’ll listen.

Party affiliation is not very helpful in determining how someone will vote in a funding case. Democratic lawmakers and executive-branch officeholders in New Hampshire are nearly unanimous in their objections to cutting off state funds to abortion providers. That doesn’t mean Republicans can be counted on to support de-funding efforts. Republican Executive Councilors Ray Burton and Chris Sununu supported PPNNE’s contract bid in 2011 and again last week.  With nearly 300 Republican House members at the time HB 228 was considered, only 207 voted to pass the bill. Once it got to the Senate, Republican Majority Leader Jeb Bradley made the successful tabling motion.

Years of allowing abortion providers to mix the words “health care” and “abortion” are bearing ugly fruit.  When the senior policy director for PPNNE introduces herself before giving testimony in Concord, she doesn’t lead off with “we do more abortions than any other business in New Hampshire.” Instead, she calls her employer “a trusted health care provider.”

Mandatory collection of abortion statistics will force reconsideration of the distinction between abortion and health care. That’s one reason why abortion advocates fight stats bills and why New Hampshire doesn’t have a stats law. DHHS’s Division of Public Health knows what abortion providers choose to tell it, and that passes for “data.” Abortion advocacy is preventing the collection of public health information. 

Do I think a de-funding bill can pass and work? Sure – under the right conditions, with the right relationships and allies, with the right information in the right hands, led by the right sponsors. Not an overnight project, but then neither was the partial-birth law or parental notification.

In the meantime, the Executive Council is in control.

PPNNE to get “retroactive” $$ from state?

New Hampshire State HousePart 1 of 2

Planned Parenthood of Northern New England may be in line for “retroactive” contract money via the state of New Hampshire, according to a public exchange among Executive Councilors Chris Pappas (D-Manchester) and Colin Van Ostern (D-Concord) and Department of Health and Human Services Commissioner Nick Toumpas during the June 19 meeting of the New Hampshire Executive Council.

The “retroactive” money, if paid, would apply to Title X  family planning funds for 2014-2015 for the parts of the state covered by PPNNE, retroactive to July 1, 2013, according to the discussion at the meeting. If I understand the exchange between Pappas and Toumpas from the official recording of the meeting, this odd situation arises from the 2011 rejection of a PPNNE contract by the last Executive Council. (The Title X discussion begins about one hour into the recording and lasts 15 minutes. Note that the X is a Roman numeral, not a letter.)

Further, Commissioner Toumpas said in his public remarks that the state has been working with PPNNE “on a different benefit that’s going to go into place on July 1, a limited Medicaid benefit that is outside of anything that is called Medicaid expansion.” He offered no further information about that particular “benefit.”

The Council’s proceedings on June 19 illustrate the challenges facing New Hampshire residents who do not want their tax dollars going to abortion providers. Any legislative attempt to privatize Planned Parenthood, or any other abortion provider, will eventually have to be enforced by the executive branch of government.

I know Title X funds can’t be used directly for abortion. I also know that every Title X family planning dollar that goes to an abortion provider frees up other funds in the provider’s budget to keep abortions going. Therein lies the concern over Title X contracts.

Title X contracts approved by Council last week

At last week’s meeting, councilors unanimously approved a total of ten contracts with various family-planning providers for 2014-2015, mostly community clinics around the state. Under the Title X program, federal dollars are granted to states, which then administer the funds. PPNNE was conspicious by its absence from the list of contractors. During last week’s Council meeting, this missing contractor was discussed at length.The exchange between the Councilors and the Commissioner sounded to me like a planned effort to put things into the public record that were missing from the written material made public before the Council meeting. Why be mysterious at all? Let’s go back two years.

Flashback to 2011

In June 2011, eleven Title X contracts came up for Executive Council approval. Each proposed contractor was to be responsible for a specific part of the state. This was supposed to be a routine matter. One of the proposed contractors was PPNNE, which had handled Title X family planning contracts for years. By itself, it covered 57% of the state; the other ten contractors combined covered the other 43%. PPNNE was the sole surgical-abortion provider among the contractors, though, and that caught the eye of Councilor Dave Wheeler. Wheeler was (and still is) a firm believer in keeping public money away from abortion providers. Wheeler’s vote against the PPNNE contract was no surprise, and neither was the Nay from Councilor Ray Wieczorek. What was stunning was the Nay vote from Councilor Dan St. Hilaire, who didn’t have a high profile – or indeed, any profile – on the funding issue. Result: PPNNE lost the contract, garnering support from only two councilors that day (Republicans Ray Burton & Chris Sununu).

The stuff hit the fan. PPNNE, unaccustomed to being turned away, sidestepped state approval. The agency sought and received a direct grant for family planning from the federal government. Meanwhile, its PP Action arm went to work. Knowing that attacks on Wheeler and Wieczorek were pointless, PP’s allies went after St. Hilaire. Signs like “Dan St. Hilaire wants to take away your birth control” started popping up.

(I continue to be amazed at how determined some people are to keep women dependent on government handouts for birth control. How is that policy not creepy?)

St. Hilaire and Wieczorek chose not to run for re-election in 2012, and Wheeler was defeated by Debra Pignatelli (whom he had defeated in 2010). Result: all five current Councilors are PP supporters. Now, Councilor Pappas refers to the 2011 contract rejection as “a little bit of a hiccup.”

PPNNE & family planning in NH:, post-2011

So what happened to PPNNE’s clients whose services would have been paid for by Title X after July 1, 2011? In a word, nothing. Dollars given to PPNNE directly by the federal government replaced dollars administered by the state of New Hampshire under Title X. Commissioner Toumpas last week didn’t explain to Councilors the details of that particular arrangement, saying it would be “inappropriate” for him to know what those details were.  

I obtained a copy of the Title X contract letter submitted by DHHS to the Council for approval last week.  The ten entities approved for contracts cover the state, excluding “the geographic areas of Cheshire and Rockingham Counties, and the towns of Lebanon and Claremont.” That tells me that those “geographic areas” are PP territory, and I assume that PP is currently providing family planning to clients using the money it received directly from the federal government in lieu of a conventional Title X contract in 2011.

Toumpas: “It’s not appropriate for me to know what they did.”

Councilor Pappas and Commissioner Toumpas put some information about PPNNE’s 2011 “sidestep,” and its implication for future state funding, on the public record. I transcribed this conversation from the recording of last week’s meeting. I have used bold-face text to highlight certain statements. Remarks within brackets are my own.

Pappas: I’ve asked you offline about this as well. These are family planning funds, and obviously there was an issue a couple of years ago – a little bit of a hiccup – with funding and contracts for family planning. And I’m curious, these funds that are contained in these contracts [note: the ten Title X contracts for 2014-2015] don’t appear to represent or cover the whole state. I’m wondering how future contracts will be dealt with with the remainder of the money that’s available for family planning.

Toumpas: What happened a couple of years ago, we had brought forth eleven contracts that in total covered the entire state. We serve around 26,000 people through the family planning/Title X dollars. Planned Parenthood of Northern New England had roughly 57% of those numbers in some of the more populated areas of the state. And the other 43% of the people were served by the other ten agencies. When we [NH Department of Health and Human Services] brought forward a contract, … the Planned Parenthood contract was rejected. What we ended up doing was … going to the federal government; we relinquished the dollars and therefore the responsibility that the state had, and that responsibility is now borne by the federal government, Office of Population Health, working directly with an entity that they would contract with. It turns out that they contracted with, and appropriately I believe, Planned Parenthood of Northern New England. So essentially we created a bifurcated model for the state so that there isn’t any one entity in the state that has oversight over the entire [family planning] program. …  Last year- the grant awards come up every two years – last year we approached Planned Parenthood and said we wanted to go with a statewide proposal again. We did that, we had that discussion, a good discussion with them, and it was determined that they were going to pursue the grant independently of us. We went after it statewide. It’s not appropriate for me to know what they did. But in the end, the federal government granted money to the state [for the approved contracts] and granted money to Planned Parenthood [in lieu of its rejected 2011 contract with the state].

Dollars and cents, “equitable and proportional”

How much state-level money for family planning is in the upcoming budget?

Governor Hassan asked for $894,000 per year in 2014 and 2015 – a more than half-million-dollars-per-year increase over fiscal year 2013. See page 1045 of the Governor’s budget proposal. The House and Senate had no argument, preoccupied as they were with other matters within the state budget. Compare this to the budget request from DHHS, which asked for $344,000 per year for 2014-2015; this was close to level-funded compared to 2013.

Why is there a half-million dollar discrepancy? Commissioner Toumpas told the Council, “…we knew that the Governor had put money in, an additional half a million … but not wanting to issue a contract based on an unknown, we went with a more conservative [budget request].” In other words, DHHS couldn’t be sure the legislature would approve a budget that more than doubled last year’s state expenditures for family planning programs.

By the time of the June 19 Council meeting, all parties were confident that the extra half-million dollars would indeed be appropriated.

Toumpas: …as it’s progressed through the budget language right now, the roughly $850,000, it is our understanding the intent of the legislature and the governor’s office that those dollars would get distributed, I believe the words are ‘equitably and proportionately.’ So the contracts you have here right now [from the ten area agencies] don’t reflect that at a statewide level. What we will do, assuming the budget that is being discussed across the street survives for at least this appropriation, what we will do is then we will, going within the next couple of months, we will then make an adjustment and be able to direct the dollars, the appropriate dollars, into that region that is covered by Planned Parenthood of Northern New England. I believe we have adequate dollars within the contracts we have before you today so we won’t need to do any adjustments there. …I know the issue has been raised that dollars aren’t being directed to Planned Parenthood right now but again my commitment is that I would make that adjustment in a subsequent contract and that we will be going forward.

Pappas: So you haven’t actually determined the formula for distributing those dollars yet.

Toumpas: We have not. …It’s a formula that goes into it, and I don’t profess to know that off the top of my head.

Pappas: But you’ve taken into consideration, or you will, the footnote that will likely … [Toumpas interrupts]

Toumpas: Absolutely. The footnote will be the law that will guide what it is that we are doing. My understanding of what is the intent of the Governor’s office and the intent of the legislature are very clear.…The other question I believe that a couple of the Councilors have asked me is when we will have an opportunity to basically have a unified statewide program again. Because the grants are done every two years, our next opportunity will be calendar year [20]16. And so in calendar 2015, we will then go and submit our request for the funding that will cover a statewide level and that will be our next opportunity to basically bring it under one unified program.

Pappas: And so future dollars that will be contracted out will be retroactive to July 1, …in terms of dollars that will come as part of the budget once it’s approved in the next fiscal year.

Toumpas: Ah, for [20]14, that would be retroactive for the Planned Parenthood part of the state.

 

Coming in part 2: Councilor Van Ostern joins the discussion; “I think the Council botched this two years ago.”

(An earlier version of this post contained an erroneous date for House and Senate action on the state budget.)