Judges’ rulings do not blossom after carefully evaluating competing legal briefs; most judges know at the outset where they want to end up and then carefully select the legal stepping stones to get there.
This happened in the Aug 1st ruling in which Kansas district Judge Thomas Marten dismissed the state’s constitutional budget authority and used “injunctive relief” to send one third million dollars in family planning tax money to Planned Parenthood of Kansas Mid-Missouri.
Kansas’ new law prioritizing family planning contracts is– on the legal merits– the strongest of state battles with Planned Parenthood funding.
Since Planned Parenthood attorneys can’t win that argument, they necessarily spun their lawsuit as a free speech issue in which a ‘newly-elected radical-right wing government wages a war on women.’
Judge Marten warmed to that theme and issued a temporary injunction against a budget proviso — with language that never mentions abortion or Planned Parenthood– because Marten determined that its true “purpose was to punish Planned Parenthood for its advocacy of abortion rights.”
To support the ruling, an Associated Press piece Sunday first gave the judge’s pro-abortion credentials as a Clinton appointee who once serenaded Gov. Sebelius at an inaugural party. Then for the heavy defense: Judge Marten is so very dedicated to upholding the first amendment that he has made enemies on both sides in the abortion issue because of it!
But the first amendment isn’t the issue here– the heart of the matter is the state’s authority to select contracts, and whether it will be allowed to follow a duly-passed proviso to support public health clinics.
Judge Marten ignored the state’s argument pointing to a 1982 precedent, a circuit court decision in which Planned Parenthood lost its bid to undermine the authority of Utah to control all state contracts for family planning.
Judge Marten also failed to rebut the state’s position that there was no real “liberty interest” at stake that called for his intervention.
Among other strong points in the defense, the state had argued that, one, the businesses Kansas contracted with for funding are still at liberty to counsel about abortion and, second, one family planning business in Dodge City also lost funding although it is unconnected with Planned Parenthood or abortion. In other words, abortion is irrelevant to the state instruction on contracting with public health clinics.
Judge Marten can tell himself that the heart of this case was businesses’ free speech rights to promote abortion– and he can smile that the AP believes him– but that doesn’t make it so.
