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Archive for the ‘Court rulings’ Category

Justice Alito

Justice Alito

On Monday, the U.S. Supreme Court upheld conscience protection for certain businesses to refuse to provide abortifacient drugs and devices through employee insurance, as mandated by an HHS rule under Obamacare.

The Hobby Lobby ruling applies narrowly to “closely held corporations,” which the IRS defines as firms where half of the value of the corporation is held by five or fewer individuals. The Obama administration had argued that ‘for-profit’ corporations couldn’t have religious beliefs, but the Court disagreed, finding that,

“Protecting the free-exercise rights of closely held corporations…  protects the religious liberty of the humans who own and control them.”

The Court also noted that the Evangelical owners of Hobby Lobby and the Mennonite owners of Conestoga Wood Products (both “closely held corporations”) professed “sincere Christian beliefs that life begins at conception and that it would violate their religion to facilitate access to contraceptive drugs or devices that operate after that point.”

Specifically, the Hobby Lobby lawsuit sought an exemption to providing 4 of the listed 20 forms of contraception that HHS mandates under “preventive services.”

Gov. Brownback

Gov. Brownback

KANSAS PROTECTIVE LAWS
Of note to Kansas pro-lifers is that the Hobby Lobby majority opinion was written by Justice Samuel Alito.

Alito’s appointment to the Court would not have occurred had not our governor, then-U.S. Senator Sam Brownback, led the resistance to President Bush’s 2005 nomination of Harriet Miers to replace the retiring Justice Sandra Day O’Connor. O’Connor had provided the fifth vote in the 2000 Stenberg decision striking down a Nebraska partial birth abortion law but Alito became the fifth vote to uphold the federal partial birth abortion ban in 2007.

The backdrop of the Obama administration’s aggressive abortion agenda further incentivized Kansas to pass particular pro-life laws, signed by pro-life Gov. Brownback, elected in 2010.

After the passage of Obamacare that included abortion coverage, Kansas enacted laws in 2011 to prevent abortion coverage in any future Kansas health exchange and in all private health insurance plans unless a separate abortion ‘rider’ is purchased.

In the wake of the HHS mandate and an increase in contraceptive promotion, Kansas medical professionals faced a growing ethical problem: some pills and devices marketed as preventing pregnancy also disrupt the implantation of the human embryo—called a post-fertilization abortifacient effect.

Because Kansas’ abortion statute defines legal contraception as, “the use of any drug or device that inhibits or prevents ovulation, fertilization or implantation of an embryo,” in 2012, Kansas passed conscience protection for medical professionals and facilities: “No person shall be required to perform, refer for, or participate in medical procedures or in the prescription or administration of any device or drug which result in the termination of a pregnancy or an effect of which the person reasonably believes may result in the termination of a pregnancy.”

In 2013, Kansas passed further barriers to government promotion of abortion in healthcare in the Pro-Life Protections Act, which

  • declares that human life begins at fertilization and that Kansas public policy will promote and protect the interests of unborn children and their parents;
  • prevents state agencies from discriminating against individuals or health care institutions that do not provide, pay for, or refer for abortions;
  • more effectively bans abortion performance and abortionist-training at the tax-funded KUMed Center.

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Hobby Lobby, I stand with (2)The U.S. Supreme Court today upheld, by a 5-4 majority, the right of business owners to operate their family companies without violating their deeply held religious convictions against abortion.

The decision in the Sebelius (now Burwell) v. Hobby Lobby Stores, Inc. ruling, is here, with legal comment here.

Justice Samuel Alito authored the majority opinion, declaring that the ‘HHS contraception mandate’ (a regulation issued under Obamacare) substantially burdens the Constitutionally-protected free exercise of religion.

The essence of this ruling is that the government may not create an artifice of a health mandate to force citizens to underwrite and promote abortion.

Although regularly termed as litigation against the HHS contraceptive mandate, Hobby Lobby (and other businesses) filed suit specifically in objection to being forced to provide some contraceptives—those that act to abort human embryos—under the HHS mandate.

Specifically, they objected to 2 drugs and 2 IUD devices, labeled as contraceptive, that actually can prevent implantation of the already-formed human embryo into the womb for gestation, also called a ‘post-fertilization abortifacient function’. (Read a thorough analysis of contraceptives from pro-life OB/GYN, Donna Harrison here.)

Furthermore, when evaluating the governmental interference with religion, the Court found that the HHS mandate violates the “least restrictive means” test of the 1993 Religious Freedom Restoration Act (RFRA). RFRA demands that interference with religious freedom must be based on a compelling governmental interest, and be executed in the least restrictive means needed. Without ruling whether the goal of insurance provision of contraception is really a compelling governmental interest, the Court ruled that the HHS mandate, as a means of achieving that goal, is out of bounds.

The Court affirmed that freedom of religious expression is not limited to a person in his/her private, individual capacity, but –as set out in RFRA — extends to him/her when acting as a corporation, whether for-profit or non-profit.

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PPKMM logo (2)Planned Parenthood of Kansas & Mid-Missouri is the only one of Kansas’ four abortion clinics not in compliance with a state weblink requirement that went into effect April 24.

PPKMM had unsuccessfully sued last year to block a nearly identical abortion informed consent provision.

The 2013 Pro-Life Protections Act had required Kansas abortion business to place –on their website homepage– a one-click link to materials prepared by the Kansas Health Department identified as “objective, nonjudgmental, scientifically accurate.”

Effective April 24, a new law, Senate Bill 54, continues the weblink mandate but trimmed the four word identifier from the tagline. The required tagline now reads:

“The Kansas Department of Health and Environment maintains a website containing information about the development of the unborn child, as well as video of sonogram images of the unborn child at various stages of development. The Kansas Department of Health and Environment’s website can be reached by clicking here.www.womansrighttoknow.org

Eleven months ago, PPKMM filed suit in the court of federal Judge Kathyrn Vratil. They maintained that the requirement for a live link with tagline was “compelled speech” that violated the First Amendment and asked for an injunction.

Judge Vratil did not issue the injunction, noting the weblink had been already enjoined in state court for another abortion business, the Center for Women’s Health. Vratil ordered that she be apprised of any action involving the state injunction.

However that state court injunction was officially dissolved last Friday, and PPKMM knew it was in the works with the signing of Senate Bill 54 last month.

PPKMM should have been prepared to comply or petition for a new injunction—and they have done neither, as of press time today, Wednesday. Their website is here.

Attorneys for the Kansas Attorney General had defended the weblink as a regulation of commercial speech, which courts require to be proportionate to the state interests it advances. The “free speech” of the abortionist is still allowed free reign to critique, or even mock the link, which two did.

Here are two current examples of abortionist-added editorial content that immediately precede the weblink tagline.

The Aid for Women clinic—notorious for its churlish postings on their abortion clinic website, prefaces the weblink with this:

We are being forced by Republicans to use our website resources to say untruthful things about the State’s proLife website in hopes that you will visit their website and change your mind away from abortion. We must have this signage or go to jail. Republicans also don’t believe that rape causes pregnancy, nor ever too many children. They are stupid. Let’s vote them out of office. However, here goes..

The Center for Women’s Health in Overland Park prefaces the weblink with this:

WE ARE REQUIRED BY THE STATE OF KANSAS TO SAY THIS, WHICH DOES NOT NECESSARILY REFLECT CURRENT MEDICAL OPINION; OR, OUR OPINION:

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abortion not health care (2) The Associated Press reported late Friday that the ACLU (American Civil Liberties Union) has withdrawn their failing lawsuit against a 2011 Kansas law which bars private health care insurance from covering elective abortions. The ACLU cannot file these claims again or appeal the earlier court rulings.

Under the law– like the court-approved law operating in Missouri and (de facto) in eastern Kansas for over two decades– abortions other than to save the mother’s life would not be covered unless individuals had separately  purchased “riders”. The law was sought as a “conscience” protection by

  1. employers who did not want to be forced to offer policies with abortion coverage, and
  2. employees who objected to having their health care dollars pooled into plans that paid out for abortions.

The plaintiffs were women (primarily two former Kansas abortion lobbyists) claiming they lost their abortion coverage under the new law and that it showed gender discrimination.  It was rough going for the ACLU side from the start: they did not merit an injunction, a variety of their legal claims were advanced and then scrapped, and they were told more than once that their claims “lacked evidence.”

On Jan. 7, 2013, federal Judge Julie Robinson soundly rejected the ACLU motion for a bench ruling instead of a trial, responding that, as a matter of law, the ACLU failed to provide any evidence that the Legislature’s predominant motivation in passing the law was to make it more difficult to get abortions.

Judge Robinson wrote, “Whether one agrees or disagrees with [the State's] asserted cost and/or “freedom of conscience” rationale, there is nothing in the record to show that this was not the legislature’s purpose in adopting the law. Moreover, the claimed interests are rational ones.”

Abortion supporters –who sued three of Kansas’ 2011 pro-life measures– are fond of complaining that too much money has been spent by the state on defense litigation. They argue that these pro-life laws were only sued because they are “wrong,” but in this case, the court has recognized that it was the ACLU wasting taxpayer money.

Abortion is always the taking of an innocent human life; and the upholding of  this law, which stops society from “normalizing” and mainstreaming abortion as health care, is a victory.

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A.G. Schmidt

Kansas pro-lifers got good news from a federal court May 18th: two Kansas city-area abortion clinics will have to pay their own attorney fees of over $220 thousand dollars without Kansas’ taxpayer reimbursement. Judge Carlos Marguia ruled the clinics had not “prevailed on the merits,” and thus did not qualify for state reimbursement.

Attorneys from the Center for Women’s Health (CWH) and Aid for Women (AFW) had been petitioning for state payment of their attorney fees incurred when the clinics filed to halt both the new state abortion facility licensure law and the provisional clinic regulations written by the Kansas health department (KDHE).

The clinics had sought a permanent injunction in a rushed proceeding July 1, 2011 in front of federal Judge Murguia, claiming irreparable harm would ensue if the law went into effect that day. Judge Murguia awarded only a temporary injunction, largely in order to “maintain the status quo” while issues moved forward.

In November 2011, KDHE issued permanent abortion facility regulations, using a slightly modified version of the original set. Both clinics dropped the federal lawsuit, but the injunction was retained and the lawsuit was refiled in state court by only one clinic CWH (the business of abortionists Herb Hodes and Traci Nauser).

The office of Attorney General Derek Schmidt had filed motions in opposition to paying all the abortion attorneys involved, arguing they were not entitled because such reimbursement is available for “claimants who had prevailed on the merits” in civil rights cases.  [Yes, this is a civil rights case because (hold your groans) one of the claims is that clinic regulation violates a woman’s civil right to obtain an abortion.]

Beyond ineligibility for reimbursement, the Attorney General claimed national and local abortion attorneys had inflated billable hours and wage rates to make a “windfall” off of Kansas taxpayers.  The irony is evident: abortion advocates have been complaining that the defense of pro-life laws is a wasteful depletion of the treasury, and then their own attorneys try to rip-off that same treasury!

Thankfully, that won’t happen at this juncture, due to the litigators working for the AG office.

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Planned Parenthood of Kansas Mid-Missouri is without a Title X contract for services in Kansas this year because it does not provide primary and preventative care; yet it wants the state to rescue its failing Kansas clinics to the tune of an immediate $80 thousand dollars– all before any services are rendered.

In today’s federal court filing, Planned Parenthood demands Kansas pay a financial penalty, including a  fine of $1000 “for each day that the contempt continues” for “causing Planned Parenthood to suffer considerable ongoing harm.”

Planned Parenthood claims to be “facing the imminent closure of its health center in Hays, Kansas…and it is currently operating at an enormous monthly loss in both Hays and Wichita simply to keep its health centers open.”

Earlier filings point out Planned Parenthood lost approximately $264,000 (corrected) on both clinics last year, which is why they are so desperate to get Title X money of approx $330,000 .

Planned Parenthood is demanding quarterly pre-payment the way they were formerly funded and rebuffing temporary monthly payment-after-services, as offered in a formal compromise offered by the state last Friday. The state

  • had asked for a clarification of funding ordered to Planned Parenthood by Judge Thomas Marten on Aug.1, and re-ordered Aug. 17;
  • offered partial funding that would be refunded when the state wins the lawsuit;  and
  • requires that Planned Parenthood post a bond.

Planned Parenthood attorneys argue the request for bond is late and unnecessary, but since their businesses are in the red, it seems a wise requirement.  After all, it is the state ‘s public health department which would suffer the loss if Planned Parenthood defaults.

With an activist judge leading the charge, and the resources of three high-powered law firms, Planned Parenthood continues to demand taxpayer’s money that the business is not legally qualified to receive.

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Activist Judge backs PPKMM

Planned Parenthood of Kansas Mid-Missouri (PPKMM) insists that they will be irreparably harmed without Kansas’ Title X contracts and Federal Judge Thomas Marten is backing them up.

The state of Kansas, in an Aug. 9 appeal brief, labels that claim of harm as “rank speculation” not deserving emergency relief from the court.

The state’s appeal asked Judge Marten to take back his injunction while the matter is in litigation, but– no surprise here– he denied the appeal in a ruling Wednesday.

The clock is ticking in this high-stakes matter because the federal HHS agency ordinarily requires all Title X family planning contracts to be finalized by Aug. 31. Late today, the Associated Press was reporting PPKMM wants to force the state of Kansas to turn over federal funds  immediately. (more…)

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