Kansas Pro-Life Laws Challenged and
State “Evidence Shredding” Delays Planned Parenthood Prosecution
By Kathy Ostrowski
When Kansas Gov. Sam Brownback signed six pro-life measures into law
this year, pro-lifers were not at all surprised that half of them
wound up in litigation initiated by the three remaining abortion
clinics left in the state, aided and abetted by the American Civil
Liberties Union. But the Brownback administration has vigorously
contested those challenges.
The first lawsuit, filed by Planned Parenthood of Kansas
Mid-Missouri in June, landed in the court of U.S. District Judge
Thomas Marten. It challenges a budget mandate that directs the state
health department (KDHE) to award federal Title X family planning
contracts primarily to full-service public health clinics. In this
way, tax money subsidizes full-service health care for the indigent.
What had been happening in Kansas was that the specialty service,
private entity of Planned Parenthood annually gobbled over $320,000
for its two “feeder” clinics which (as legal filings revealed) were
annually in the red by $265,000! In addition, Dodge City Family
Planning (DCFP), a business without any connection to Planned
Parenthood or abortion, was taking $40,000 to $50,000 per year. Both
businesses were disqualified under the new mandate, but KDHE had
replacement public clinics lined up so that health services to the
poor would not be interrupted.
However, Judge Marten totally adopted the Planned Parenthood
argument that the new Kansas family planning qualification was
nothing more than a mechanism to hurt Planned Parenthood (even
though it also “hurt” the DCFP, which had no abortion connection).
Marten declared that the legislature’s abortion opposition was an
impermissible violation of the “free speech rights” of businesses
and women to support abortion.
Marten placed a preliminary injunction on the law and forced the
KDHE to make quarterly payments to both Planned Parenthood and the
DCFP in the meanwhile. The state filed an appeal with the 10th
Circuit Court of Appeals, with a ruling not expected before January.
Clinics Fight State Oversight
The second litigation launched was a combination of two lawsuits
from all three abortion clinics fighting the new abortion facility
licensure regulations. The clinics sought an injunction to block
temporary agency specifications derived from the law, claiming there
wasn’t enough time for them to comply with “onerous and unneeded”
The state’s defense lawyers argued July 1, in front of U.S. District
Judge Carlos Murguia, that the clinics’ complaint was a red herring:
“They do not care how much time they’re allowed. They do not want to
come into compliance ever. They want this court to tell them they
don’t ever have to remodel their facilities to make them look more
like an ambulatory surgical center.”
Planned Parenthood dropped its suit after it attained a KDHE license
on the day the law was due to go into effect. The other two abortion
businesses (the Center for Women’s Health and Aid for Women) did not
qualify for a license, but were granted an injunction by Judge
Murguia to halt the process and “prevent irreparable harm.”
After public input, the abortion facility specifications became
permanent on November 14, with KDHE addressing a few of the clinics’
complaints. Nevertheless, as the state lawyers had predicted, the
clinics filed another lawsuit and gained a restraining order against
the regulations from the state district court in Topeka. Hearings
for a new injunction are scheduled to begin December 6.
The third pro-life law sued is the Kansas insurance bill that
segregates abortion from ordinary health care coverage—both in
private insurance policies and any future ObamaCare federal/state
health exchanges. Several states have had laws for decades that deny
private insurance coverage of elective abortion without “riders.”
The ACLU filed in federal district court in July on behalf of two
Kansas abortion lobbyists. It argued that the law violates the
women’s 14th Amendment protections by harming their right to
abortion and by exhibiting gender bias. That second claim is one
that multiple courts have denied for many years and the state
defense team has asked the court to strike the claim from the suit.
The ACLU lawyers have wobbled: they were late in requesting amended
affidavits, failed to secure an injunction, and then had the court
officially add, and then delete, a cause of action against the
ObamaCare provision. The trial starts in June 2012.
“Shreddergate” Harms Prosecution
February 22 is the next hearing date for the much-stalled criminal
prosecution of the Overland Park, Kansas, Planned Parenthood
abortion facility—the largest of Kansas’ three abortion businesses.
Johnson County District Attorney Steve Howe will prosecute 58
misdemeanor charges for wrongful determinations of viability and
illegal abortions performed in 2003.
These misdemeanor-level crimes are part of a set of 107 charges
lodged in October 2007 by then-District Attorney Phill Kline. They
are based on medical evidence secured by Kline as state attorney
general (2003–06), and twice stalled by the state Supreme Court
under the flag of protecting patient medical privacy.
Forty-nine other charges against Planned Parenthood included 26
misdemeanors for failure to include “Induced Terminations of
Pregnancy” (ITOP) report copies inside patient files and 23 felonies
for alleged forgeries of those missing copies. These ITOP reports do
not contain patient names, but are designed to supply the procedure
date, mother’s age, and whether the abortion satisfactorily
qualified as an exception to the state ban on post-viability
On November 9, Howe set off a firestorm by announcing that the
prosecution of those 49 charges would have to be dismissed because
his office had only recently discovered that paperwork needed to
prove the crimes had been shredded in 2005 and 2009! The first
shredding was of original ITOP forms that should have been retained
by the health agency under then-Gov. Kathleen Sebelius, who had
fought Kline’s subpoena for those reports. The second shredding was
of ITOP copies held by the Sebelius-appointed attorney general,
Current Kansas Attorney General Derek Schmidt announced on November
10 that he had secured an independent investigation by the local
sheriff into events surrounding the disposition of abortion
documents under his predecessor, Attorney General Six. Gov.
Brownback immediately announced his support for this investigation
into a “deeply concerning” situation.
Indeed, it is “concerning”—and yet another proof of the long-term
abortion corruption in Kansas—when evidence involved in active,
criminal prosecutions at the highest levels is shredded by state