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NRL News
Page 20
Fall 2011
Volume 38
Issue 8

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” regulations.

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 abortions.

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, Steve Six.

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 agencies!