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Archive for the ‘Lawsuit v Kansas’ Category

Kansas WRTK site has interractive ultrasound

Ultrasound featured on KS- WRTK

For decades, we have heard tearful testimony from post-abortive women who were misinformed about the humanity of their unborn child by the abortionist and staff. Far too many mothers have looked at sonograms of their current “wanted” pregnancy only to realize in private horror that the abortion they had years before, did not merely remove a “blob of tissue,” but destroyed a recognizably human, unborn child.

In the pursuit of selling an abortion, clinics cannot be trusted to promote medical accuracy. Unlike other acts of consumer deception, for which lawsuits would be entertained, abortion clinics fear no legal repercussions.

Instead, the one significant bar to total manipulation of abortion information came from the U.S. Supreme Court in its 1992 Casey decision. Casey allows the states to provide “objective, nonjudgmental, scientifically accurate” information relevant to making an informed abortion decision.

Kansas implemented that right in 1997 by creating a “Woman’s Right to Know” division of the state health department (KDHE), to maintain a 24-hour phone hotline and publish official informational booklets.  Every legal abortion in Kansas requires the woman (whether a Kansan or non-resident) to sign a paper that she “accessed” this information prior to abortion.

In 2009, the Kansas legislature was able to enact updated pro-life provisions for informed consent that were not vetoed –as had been the pattern under then-Kansas Gov. Kathleen Sebelius. During a few-weeks window of time when she awaited confirmation as HHS secretary (and having described herself to the Senate Confirmation committee as pro-life!), Sebelius signed a pro-life law containing these main provisions:

  1. required clinics using ultrasound technology to honor the woman’s request to see the child’s ultrasound and receive a hard copy, 30 minutes prior to abortion; and
  2. instructed the KDHE to update all WRTK printed materials to a website.

[Unsurprisingly, after confirmation to the HHS post, Sebelius vetoed another pro-life bill, a late-term abortion ban. And both her administration, and that of her replacement, Gov. Mark Parkinson, botched the WRTK website project.]

IMPROVED 4-D ULTRASOUND
More importantly, however, was the fact that the WRTK website was indeed properly implemented in 2011, under pro-life Gov. Sam Brownback. Notably, the WRTK website was the first in the nation to include an independently-produced,  4-D ultrasound educational tool about prenatal development.

There has been significant traffic to the WRTK website, but the quintessential point is to provide “one-click” access to women at the crucial moments they are considering abortion. (Read more here.)

When women experience a lack of support for maintaining their pregnancy–or downright coercion to abort–they need every tool they can get. The WRTK website is a source of objective facts about pregnancy and a list of assistance centers. It is designed to enlighten and empower women, especially those being pressured by partners, friends or family members. Such information is best contemplated away from the abortion business, and a privately-accessible, trustworthy web source is ideal.

It is noteworthy that the websites of all four Kansas abortion clinics did include this WRTK link voluntarily from 2011-2013–even the (recently-closed) Aid for Women clinic whose website commentary roundly bashed the WRTK information. No doubt the clinics found that burying this link somewhere on their web pages would legally allow them to not physically hand out the WRTK booklets to their clients.

With the link thus so unevenly treated, and even scorned, the Kansas legislature in 2013 mandated that every abortion clinic in the state feature a live link to the WRTK site on their homepage, with a short descriptive tagline. The weblink tagline (tweaked in 2014) 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.

Two Kansas City suburban abortion clinics sued the weblink mandate as an infringement of the First Amendment. The injunction governing the weblink–obtained in state court by the Center for Women’s Health, in June 2013– was dissolved this summer. Notice of this action was sent to federal court, which has not yet acted upon a request by Planned Parenthood of Kansas & Mid Missouri for a similar injunction.

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no PPIn a not unexpected move, Planned Parenthood of Kansas and Mid-Missouri announced today it plans to close its financially failing Hays facility that no longer qualifies for family planning funds distributed by the Kansas health department.

PPKMM lost a crucial legal fight in March when the Tenth Circuit Court of Appeals overturned a 2011 lower court ruling.

The trial judge’s decision had forced the Kansas Department of Health and Environment

to direct approximately one million dollars over the past three years, mainly to Planned Parenthood of Kansas & Mid-Missouri.

On May 9, PPKMM announced they would not pursue any more appeals.

The 2009 Kinzer-Huelskamp budget amendment directed the state health department to award Title X money to full-service medical clinics and hospitals best serving the indigent. That prioritization was approved consistently  by the Kansas legislature but vetoed by former Governors Sebelius and Parkinson. However, it has been approved in every budget under current Gov. Sam Brownback.

While PPKMM’s Hays and Wichita “feeder” clinics did not perform abortions, they referred for them. Apparently that was enough of a reason to keep their doors open when they were seriously in the red—combined over $225,000 each year—even when they were receiving over $300,000 in Title X funding.

LEGAL BACKGROUND

PPKMM sued, and won mandatory funding from 2011-2014, ordered by Wichita federal judge Thomas Marten in a 36-page decision handed down in August 2011.

Judge Marten’s opinion could have been lifted from one of the briefs filed by Planned Parenthood of Kansas and Mid-Missouri. He accepted without quibble Planned Parenthood’s argument that (in his words) “The purpose of the statute was to single out, punish and exclude Planned Parenthood.”

Various state officials “hotly contested” Marten’s decision, as the Kansas City Star wrote at the time, and responded vigorously.

Dr. Robert Moser, who was  sued in his capacity as Secretary for Kansas Department of Health and Environment, said,

Title X was not intended to be an entitlement program for Planned Parenthood. Other providers are already offering a fuller spectrum of health care for Kansas patients. This highly unusual ruling implies a private organization has a right to taxpayer subsidy. The people of Kansas disagree.”

Added Attorney General Derek Schmidt in a prepared statement, “It appears that the Court declared a duly-enacted Kansas statute unconstitutional without engaging in the fact-finding one would expect before reaching such a conclusion,”

The Tenth Circuit Court of appeals overturned Judge Marten in March, ruling that PPKMM lacked standing to pursue its claims in federal court, and that its claim of a First Amendment violation lacked merit–about as resounding a defeat as you could get.

Mary Kay Culp, executive director for Kansans for Life, said, “we applaud that Kansas budget decisions are no longer being forced to prop up a for-profit abortion business.

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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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wrtk_header_seal (2)Days after Planned Parenthood conceded defeat to Kansas in a three-years-running lawsuit, another abortion lawsuit over a pro-life Kansas law is rapidly crumbling.

Last week, attorneys for Herb Hodes & Traci Nauser, who operate the Center for Women’s Health (CWH) in Overland Park, acknowledged that

an injunction they’d obtained on small portions of a 2013 law is no longer in effect. 

In addition, they have officially withdrawn sections of their lawsuit against the 2013 Pro-Life Protections Act in which they claimed that free speech rights guaranteed under the Kansas Constitution were infringed.

The Pro-Life Protections Act improves informed consent, bans sex-selection abortions and removes tax advantages for abortionists. In June 2013, Shawnee District Court Judge Rebecca Crotty ruled that CWH had not met the legal standard for winning a restraining order against the entire law, meaning nearly 99 % of the Kansas Pro-life Protections Act would go into effect. Judge Crotty did grant CWH attorneys a temporary injunction on two small provisions:

  1. the definition of medical emergency that could have been interpreted to affect ectopic pregnancies, and
  2. a first-in-the-nation mandate that each Kansas abortion clinic website homepage provide an easily identifiable link to the state health department’s “Woman’s Right to Know” information.

To address the Court’s concerns, the Kansas legislature tweaked those provisions slightly, effective April 24, 2014, as Senate Bill 54. 

The legislature agreed to take away the description of the state website as “objective, nonjudgmental, scientifically accurate” –which Hodes-Nauser (and Planned Parenthood in a federal suit) objected to.

Although not conceding the description is wrong, legislators judged that SB 54 would end the state court injunction, and allow abortion-seeking women to immediately click to state information, including the best-in-nation fetal development video-information.

Now, both the abortion attorneys and the Kansas defense attorneys have officially declared the original injunction is no longer operative.

The live link that abortion clinics must feature on their homepage 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

LAWSUIT CONCESSIONS
Apart from the now-voided injunction, CWH is still pressing their June 2013 lawsuit that attacks the Pro-Life Protections Act from head to foot. Here, too, however, the defense attorneys for the state of Kansas have been whittling it down.

  • In October, CWH dropped their objection to the state-developed informed consent information about the unborn child’s pain-capability, and the possible risks of premature future births and breast cancer linked to abortion.
  • In November, the court ruled against CWH’s ridiculous claim that the Act wrongly contained “non-abortion” topics of prenatal diagnostic support and the rights of unborn children and their parents.
  • In their newest concession, filed May 12, CWH dropped their fight against the “abortion coercion” warning that must be posted inside each abortion business. This required onsite posting became law in 2009, and was type-formatted to the appropriate size by the state medical board. Additional wording was added in the 2013 Pro-Life Protections Act.

The 2009 Notice read:
It is against the law for anyone, regardless of their relationship to you, to force you to have an abortion. By law, we cannot perform an abortion on you unless we have your freely given and voluntary consent. It is against the law to perform an abortion on you against your will.
You have the right to contact any local or state law enforcement agency to receive protection from any actual or threatened physical abuse or violence.
You have the right to change your mind at any time prior to the actual abortion and request that the abortion procedure cease.

The 2013 Pro-Life Protections Act retained that language, and added:
It is unlawful for anyone to make you have an abortion against your will, even if you are a minor.
The father of your child must provide support for the child, even if he has offered to pay for an abortion.
If you decide not to have an abortion, you may qualify for financial help for pregnancy, childbirth and newborn care.
If you qualify, medicaid will pay or help pay the cost of doctor, clinic, hospital and other related medical expenses, including childbirth delivery services and care for your newborn baby.
Many agencies are willing to provide assistance so that you may carry your child to term, and to assist you after your child’s birth.

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Kansas wants PP defundedOn May 9th, Planned Parenthood of Kansas & Mid-Missouri (PPKMM) withdrew its litigation against the state of Kansas, challenging the state’s decision to send federal family planning funds to public full-service clinics.

This lawsuit was originally filed in June 2011 by PPKMM and landed in the court of U.S. District Judge Thomas Marten. It targeted a budget mandate that directs the state health department 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.

PPKMM won the first round in October 2011, but lost in the Tenth Circuit Court of Appeals this March. The appeals panel ruled that Planned Parenthood lacked standing to pursue its claims in federal court, and that its

claim of a First Amendment violation lacked merit– about as resounding a defeat as you could get.

The defense team for the Kansas Attorney General, Derek Schmidt, argued Kansas had merely prioritized Title X recipients to be full-service in order to best effectuate the HHS Notice of Grant Award to Kansas. That itemized the priorities of Title X beyond family planning to include “overall health,” flu vaccinations, and mental health and social services.  PPKMM doesn’t offer those services.

Kansas has approximately 80 public health clinics as well as many other full service health outlets that can provide the elementary examinations, contraceptives and disease testing typically reimbursed under Title X.

Since 2009, the Kansas legislature has annually approved this prioritization of public clinics—the Kinzer/ Huelskamp amendment drafted by KFL; it had been vetoed by Governors Sebelius and Parkinson but approved in every budget under current Gov. Sam Brownback.

The Kansas budget provision on Title X does not mention abortion. Nonetheless, PPKMM objected that KDHE (the state health department) could not exclude abortion-connected clinics from Title X grants.

Marten bought into this abortion-bias argument and erroneously forced KDHE to direct approximately one million dollars over the past three years, mainly to Planned Parenthood of Kansas & Mid-Missouri. A small portion of that funding went to the now-defunct Dodge City Family Planning Clinic, which Marten had added to the initial complainants.

Kansas has again successfully defeated litigation from abortion interests—our second win, with 2 laws still under challenge.

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Nauser and Hodes

Nauser and Hodes: court rejects their “lame claim”

The state of Kansas won a summary judgment today in Shawnee County state court, upholding that the Pro-Life Protections Act of 2013 did not violate the Kansas Constitution’s “single subject” rule of legislative construction.

Attorneys for the Center for Women’s Health, the Overland Park offices of father- daughter abortion team Herb Hodes and Traci Nauser, lost a summary judgment from District Judge Rebecca Crotty. The abortionists’ legal team outrageously tried to argue that two sections of the law were unrelated to abortion. Those sections contained language:

  1. from the 1989 U.S. Supreme Court Webster ruling, that unborn children have interests that the state may protect in law, and
  2. expanding the state health department notices of resources available to mothers facing challenging prenatal diagnoses.

The first provision underscores what kind of laws for unborn children are allowed despite the Roe v Wade ruling, and the second prevents women from turning to abortion in frustration or due to ignorance of agencies assisting the disabled.  Abortion attorneys made the lame claim to the court that because the word abortion did not appear in those provisions, they were unrelated to abortion!

KFL State Executive Director, Mary Kay Culp stated:

“This ruling shows how ridiculous it was when the abortion industry tried a few weeks ago to lay the costs of defending this law at our feet when, in the first place, they are the ones who sued the law, and, second, the court agrees today that they did so without cause!”

RELATED FILINGS
Also filed today in Judge Crotty’s court was a formal stipulation from both the state and abortion attorneys, clarifying that women seeking Kansas abortions will receive the state “Woman’s Right to Know” abortion materials–as printed–24 hours prior to abortion, including information that the clinic does not support.

Although abortionists Hodes and Nauser lost round one, the lawsuit as originally filed makes a variety of claims against the constitutionality of the Pro-Life Protections Act and further court filings are expected in state court (read more here).

In June, Hodes and Nauser failed to win a permanent injunction against the Act, but secured a temporary injunction blocking

  • one definition of emergency abortion, and
  • a mandate to place a link to the state informed consent website on the clinic’s homepage.

The latter objection to the state weblink is also the subject of a suit in federal court by Planned Parenthood (read more here and here.)

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comp health PP (2)Last week we noted Kansas pro-life laws being taken to court without good reason, however it is encouraging that the federal lawsuit filed by Comprehensive Health/Planned Parenthood of Kansas & Mid-Missouri is moving relatively quickly.

The lawsuit focuses on Kansas’ 2013 Pro-Life Protections Act, specifically the “first-in-the-nation” requirement that the link to the state “Woman’s Right to Know” abortion information website be positioned on a clinic’s home page with this description:

The Kansas Department of Health and Environment maintains a website containing objective, nonjudgmental, scientifically accurate 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.

As background, women obtaining Kansas abortions since 1997 have been required to sign certification forms for their medical file that they “accessed” these WRTK materials 24 hours prior to abortion. The right to supply state-issued abortion information was upheld in the 1992 Casey ruling, in which the U.S. Supreme Court said the state has a role in ensuring abortion-seeking women are well informed.

Abortionists oppose WRTK information, as it not only indicates the clinics lack candor on full informed consent, but also can reveal alternative solutions to abortion. And, in fact, Kansas annual stats show hundreds of women do not have abortions after getting this info (see KFL post here).

In August, Planned Parenthood stipulated on record all their abortion clients are receiving the printed version of these WRTK materials.  Furthermore, all Kansas abortion clinics, including Planned Parenthood, voluntarily placed a link to the state website somewhere on their websites after the WRTK materials became accessible in that manner.

So, since Planned Parenthood affirms it distributes the printed WRTK materials (even while objecting to the content) and links to the state WRTK website, why do they oppose the weblink being positioned on their homepage?

They argue that such prominent positioning with an “accuracy” tagline gives the appearance they endorse the WRTK materials. They are particularly offended by WRTK facts about the pain capability of the unborn child and the statement that “abortion terminates the life of a whole, separate, unique, living human being.”

The State of Kansas has supplied strong rebuttal filings in defense of this lawsuit. They argue that the WRTK weblink does not interfere with any First Amendment speech rights as the abortionist is not prohibited from voicing or publishing opinions in disagreement with the Kansas information, as one clinic has notoriously done for years (see KFL post here).

Rather, defense attorneys say this WRTK weblink with accuracy description is permissible state regulation of abortion commerce. After all, Kansas Planned Parenthood is a business; the “Who we are” section of their website reads: “Our primary service is providing abortion services from 4 to 22 weeks gestation.” And at a profit.

Americans experience the effect of government regulation of business every day, to name a few:

  • ads for pharmaceutical products must disclose the drugs’ side effects;
  • nutritional supplement labels contain disclaimers that their claimed benefits have not been verified by the FDA;
  • cigarette packages contain cancer warnings.

Abortionists may bristle at government consumer protection actions, but,“The well-being of people who may be unsophisticated in health care matters is a compelling interest of the state” under Kansas case law (Bolton, 1979).

Kansas defense attorneys point to four other rulings since Casey [Lakey (TX 2012), Rounds II (MN, ND,SD 2008), Summit (AL 2003), Eubanks (KY 2000)] where courts denied abortionists’ claim that state informed consent regulation violated their free speech.

Both Planned Parenthood and the state of Kansas have filed formal requests that federal Judge Kathryn Vratil rule without a trial– as a matter of judging on the law—whether the weblink is permissible.  We believe Kansas will prevail.

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