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"And ye shall know the truth, and the truth shall make you free." - John 8:32
WEBCommentary Contributor
Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  September 10, 2010
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Topic category:  Government/Politics

Kelly Ayotte's Embarrassed Prolife Apologists Brazenly Ignore Facts and Law

Sadly, some pro-lifers who should know better are doubling down instead of admitting that they didn't do their due diligence.

On August 29, 2010, New Hampshire's Union Leader endorsed Ovide Lamontagne in its state's Republican Senate primary (

Soon after, the news broke that Lamontagne's main rival, Kelly Ayotte, a former New Hampshire Attorney General who has claimed "victory" in a 2006 United States Supreme Court case involving a state parental notification statute, had quietly approved the payment of $300,000 to Planned Parenthood as the "prevailing party" in the case.

Union Leader publisher Joe McQuaid's follow up editorial ( said it all:

"So it turns out that U.S. Senate candidate Kelly Ayotte's pro-life 'win' before the U.S. Supreme Court actually cost the taxpayers of New Hampshire a whopping $300,000, payable to the 'losing'' pro-abortion Planned Parenthood.

"Ayotte contends she had no choice in the matter because an appeals court to which the case was returned ordered a settlement after Gov. John Lynch and the Democratic Legislature had repealed the law in dispute. The law would have required parental notification if a minor were having an abortion (such notification is needed for a teenager to play soccer or get a tattoo, but not to end a human life.)

"But Ayotte did have choices. She had grounds to appeal the lower court's order to pay Planned Parenthood. Her side was the 'prevailing party'' in the case; and there is a Supreme Court ruling that she could have cited to argue against paying anything to the loser. At the very least, she could have scored a moral victory for the pro-life movement by publicly denouncing the settlement she claims she was forced to make.

"Instead, Kelly Ayotte did nothing and kept quiet. And now in her campaign she boasts about her great pro-life court victory without mentioning her subsequent surrender. That is grossly misleading. It should also be instructive for those trying to decide whether she or Ovide Lamontagne is the true conservative, pro-life candidate in this important race."

For people looking for the truth, the whole truth and nothing but the truth, that settles it (if there was anything left to settle after Ayotte declared that she would have voted to confirm pro-abortion former La Raza National Council board member Sonia Sotomayor to the United States Supreme Court).

Sadly, some pro-lifers who should know better are doubling down instead of admitting that they didn't do their due diligence.

Mud thrower Ed Holdgate, a former New Hampshire Right-to-Life president, squealed in a comment post at the Union Leader website:

"Welcome to the mud puddle, Joe McQuaid. You have managed to find the very dirty bottom of it this time.

"Here is a short, factually correct press release from National Right to Life that proves Kelly Ayotte had the rug pulled out from under her case, and how she was forced to settle:

"She ignored her own boss (pro-abortion Gov. Smirk) but could not very well ignore US District Judge Joe DiClerico. (How many of you would ignore your boss on such weighty matters?) If Kelly Ayotte had followed Joe McQuaid's hindsight advice, a few hundred thousand taxpayer dollars more would have headed down the sewers to Planned Parenthood because of liberal judges like DiClerico. We taxpayers should be thankful Planned Parenthood and their leeching lawyers did not milk us for more.

"Kelly Ayotte executed precisely the right pro-life, pro-taxpayer steps she was forced into when the NH voters saw fit to let the Democrat Donkeys loose in Concord.

"The pro-life Susan B. Anthony list endorsed her:¬oc=1

"The National Right to Life PAC has endorsed Kelly Ayotte too:

"Kelly Ayotte is indeed the best, most hard-working, most honorable, valiant pro-life candidate for the US Senate.

"She does not deserve what you, Joe McQuaid, are doing to her."


Holdgate's ad hominem attack on McQuaid and praise of Ayotte is pathetic. The people of New Hampshire deserve ALL the facts and McQuaid pointed out what Ayotte should have made public long ago.

Holdgate's brief post is riddled with major errors.

First, Ayotte was New Hampshire's Attorney General and NO judge was her "boss." Judge DiClerico could have awarded attorney fees to Planned Parenthood, but he could not have ordered Ayotte not to contest them or not to appeal. Ayotte deserves both any credit and any blame for her decisions to pursue the appeal taken by her predecessor to the First Circuit, to petition the United States Supreme Court for a writ of certiorari AND to have the State of New Hampshire pay $300,000 to Planned Parenthood as "prevailing party."

Second, Ayotte can't have it both ways. Either Ayotte or Planned Parenthood was the "prevailing party." If Ayotte was the "prevailing party," then Planned Parenthood was NOT the "prevailing party." If Planned Parenthood was the "prevailing party," then Ayotte was not the "prevailing party."

Third, if Ayotte thought she was saving the State money by having it pay $300,000 to Planned Parenthood, why didn't she issue a press release memorializing her "accomplishment"?

Fourth, that "short, factually correct press release from National Right to Life" is NOT factually correct and does NOT prove that "Ayotte had the rug pulled out from under her case, and...was forced to settle."

The truth:

1. The release misleadingly describes Ayotte as "Attorney General of New Hampshire." She's not. She's a former New Hampshire Attorney General.

2. Ayotte HAS been "misleading about her prolife credentials." Ayotte and her supporters claim that she won a great pro-life victory in the United States Supreme Court, but that's hype. When the decision was released, the ACLU and Planned Parenthood celebrated ( and Susan E. Wills, lawyer and associate director for education at the pro-life office of the United States Conference of Catholic Bishops, explained that counting the case as a victory "only emphasizes the degree to which precedent set by the courts protects abortion laws" ( That said, Ayotte did win a remand on remedy and thus at least Planned Parenthood did NOT prevail.

3. Criticizing "[Ayotte's] prolife credentials because she 'approved' the payment of Planned Parenthood's attorney fees in the case" is very much in order. The release states: "Based on Judge diClerico's decision, it was a given that Planned Parenthood was going to receive attorney fees. Attorney General Ayotte had no alternative but to negotiate the best settlement possible." THAT IS FALSE. The repeal of the parental notification law was NOT an acknowledgement that Planned Parenthood had been the "prevailing party." The mooting of the case by repeal did not make Planned Parenthood the "prevailing party" and Ayotte was not obligated to settle because "Judge DiClerico [had] ordered both sides to meet and make their best efforts to resolve the amount, to avoid further court proceedings." The release claims that "[t]he DEMOCRATS cost the state the loss of the case by repealing the law" and "turned a winnable case...into a gift to Planned Parenthood," but those Democrats did NOT approve ANY PAYMENT to Planned Parenthood as "prevailing party." That, Ayotte alone did, quietly.

The late Senator Daniel Patrick Moynihan was right when he said, "We are all entitled to our own opinions, but not to our own facts."

Pro-lifers should leave misrepresentation and obfuscation to the abortion industry.

Michael J. Gaynor

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Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to,,, and and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is

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