NRL News

Brownback Administration Vigorously Defends Pro-Life Laws Against Pro-Abortion Litigation

by | Dec 29, 2011

By Kathy Ostrowski, Kansans for Life Legislative Director

Editor’s note.  During this final week of 2011 we’re publishing several pro-life end-of-the-year summaries. For example, National Right to Life President, Carol Tobias, has a series all this week on Pro-Life Perspective ( Tomorrow NRLC Director of Education Dr. Randall K. O’Bannon explains how various pro-life educational outreaches came to fruition, with an emphasis on Planned Parenthood. On Friday I will add a few comments as well. In the follow overview, Kathy Ostrowski looks at how pro-abortion forces responded to the passage of six pro-life measures signed into law this year in Kansas. Half wound up in litigation initiated by the three remaining abortion clinics left in the state, along with the American Civil Liberties Union. The pro-life administration of Gov. Sam Brownback has responded vigorously. 


Pro-Life Gov. Sam Brownback

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 healthcare for the indigent.

What had been happening in Kansas was that the narrow-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 in $40,000-$50,000 per year.  Both businesses were disqualified under the new mandate, but KDHE had replacement public clinics lined up.

However, Judge Marten totally adopted the Planned Parenthood argument that the Kansas new 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 block (preliminary injunction) on the law and forced the KDHE to make quarterly payments to both Planned Parenthood and the DCFP. The state filed an appeal with the 10th Circuit Court of Appeals, whose ruling is not expected before January. 


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 that the clinics complaint –that they didn’t have enough time– 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 did drop its suit after it attained KDEH licensure on July 1, when 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 licenses, but were granted an injunction by U.S. District Judge Carlos Murguia to “prevent irreparable harm.”

After public input, the abortion facility specifications became permanent on November 14, with KDHE slightly easing a few of the clinic’s complaints.  Nevertheless– as the state lawyers had predicted– the clinics filed another lawsuit (this time in the state district court in Topeka) and gained a restraining order currently preventing the finalized regulations from being in effect until the suit is settled.

The American Association of Pro-Life Obstetricians and Gynecologists has also applied to the 10th Circuit Court of Appeals to join the lawsuit and defend the law with its own legal team.


The third pro-life law that was 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 originally on behalf of unnamed women. Subsequent filings and news stories identified two women — a former Planned Parenthood lobbyist, and a current N.O.W. lobbyist.  The ACLU opposes the law on two points. First, that the law violates the women’s 14th amendment by harming their right to abortion.  The second point calls the law gender-biased—but this claim is one that multiple courts have denied for many years.

The ACLU lawyers have certainly wobbled. They failed to secure amended affidavits, failed to secure an injunction, and added—and then removed—a cause of action against the ObamaCare provision.  A June 2012 trial is planned.


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 (2003-2006), and twice stalled by the state Supreme Court under the flag of protecting patient medical privacy.

Forty-nine other charges against Planned Parenthood included (a) 26 misdemeanors for missing copies of mandatory state ‘Induced Terminations of Pregnancy’ reports, and (b) 23 felonies for alleged forgeries of those missing copies. These  reports are basically compliance forms that 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, Johnson County District Attorney Howe set off a firestorm by announcing that the prosecution of those 49 charges would have to be dismissed because his office had only just discovered that paperwork needed to prove the crimes had been shredded in 2005 and 2009!  The first shredding was of original Induced Terminations of Pregnancy  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 Induced Terminations of Pregnancy copies held by the Sebelius-appointed Attorney General, Steve Six.

On November 10 current Attorney General Derek Schmidt announced that he had secured an independent investigation by the local sheriff into events surrounding the disposition of abortion documents under his predecessor. Gov. Sam Brownback immediately announced he supports 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, high-level, criminal prosecutions is shredded by state agencies!

Categories: Legislation