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Could Judge Marten be Rethinking his Decision?

by | Oct 18, 2011

By Kathy Ostrowski, Kansans for Life Legislative Director

Federal Judge Thomas Marten

Is it possible that Federal Judge Thomas Marten may be reconsidering his hasty decision to allow the two-person Dodge City Family Planning (DCFP) to piggyback onto Planned Parenthood’s lawsuit against Kansas’ new Title X eligibility requirements?

Last August Judge Marten granted Planned Parenthood of Kansas Mid-Missouri a temporary injunction that halted the new Kansas budget proviso directing that Title X family planning money managed by the state health department be contracted primarily with full-service public clinics. He subsequently ordered an immediate state payment of approximately $58,000 to Planned Parenthood of Kansas Mid-Missouri.

Last week Marten agreed that DCFP had a claim to “irreparable harm” under the state proviso that Marten has repeatedly declared violates federal language. The clinic is seeking immediate reinstatement of their prior Title X state contract for nearly $40,000 and attorney fees.

But after receiving the State’s October 13 rebuttal that enumerates the real facts about DCFP, Marten scheduled a hearing tomorrow on the matter. 

Marten is a federal judge appointed for life. But one thing judges don’t like to do is rack up appellate court reversals, especially the kind of rebuke  dished out to Judge Marten in 2006 when his preliminary injunction favoring abortion clinics was overturned.

Judge Marten had issued an injunction to stop then-Attorney General Phill Kline’s official interpretation that the law required that all instances of statutory rape be reported, with law enforcement to decide if they were consensual or predatory. The abortion clinics demanded they could selectively report.

In that ”Aid for Women” case, the Tenth Circuit Court of Appeals cited Marten for “abuse of judicial discretion,” which is defined as a ruling “without rational basis from the evidence”  or a ruling based on “erroneous factual findings.”

The Court reminded Marten that  because “a preliminary injunction is an extraordinary remedy, the right to relief must be clear and unequivocal.” Marten’s injunction relief for the abortion clinic failed to meet the required evaluations: he “fail[ed] to adequately analyze issues of irreparable injury, the balance of harm between the private parties, and the public interest.”

The Court rebuked his errors in undervaluing the harm to the public done by obstructing the state with unwarranted injunctions.

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