Marten orders Kansas to pay clinic, doesn’t fear reversal

Shortly after Tuesday’s 45-minute hearing, federal district Judge Thomas Marten once again issued a written ruling stomping on Kansas’ state sovereignty.

He allowed the ACLU-represented Dodge City Family Planning (DCFP) clinic to join Planned Parenthood in halting the new Kansas family planning proviso. This marks the third failing clinic Marten has funded through an injunctive action.

The state of Kansas has already appealed his earlier injunction for Planned Parenthood to the 10th Circuit court of appeals and action there is not anticipated for at least 6 weeks.

DCFP had asked for $40,000 plus attorney fees. Absent any 10th Circuit action, Marten ordered the state to immediately pay DCFP an unspecified amount with another ‘quarterly payment’ in six weeks.

Marten relies heavily on one DCFP-employee affidavit that they alone could provide family planning for hundreds of low-income, minority women in Dodge City. However, in an Oct.13 rebuttal brief, the state presented facts that Ford County (home to DCFP) continues “to have access to family planning services through

1. private providers,
2. a Federally Qualified Health Center (“FQHC”), the over-$2-million-dollar-funded United Methodist Mexican-American Ministries in Dodge City, which chose not to apply to be a Title X delegate agency because of the lawsuit,and
3. nearby delegate agencies, totaling 16 nearby clinics.”

The defense added,” the State of Kansas will continue to ensure the availability of, and access to, a wider variety of critical medical services to those Kansans most in need. In essence, the only entity that would “win” from injunctive relief would be DCFP, not the low income Kansans for whom Title X was enacted.”

Marten insists

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Judge Marten hearing recalls past rebuked injunction

On Oct. 11, Judge Thomas Marten allowed the 2-person Dodge City Family Planning (DCFP) to piggyback onto Planned Parenthood’s lawsuit against Kansas’ Title X new eligibility requirements.

Marten agreed DCFP had a claim to “irreparable harm” under the state proviso that Marten has repeatedly declared violates federal language. The failing southwestern Kansas clinic wants $40,000 from state coffers as Marten has already forced the state to send $58,000 to Planned Parenthood.

But after receiving the State’s Oct.13 rebuttal that enumerates the real facts about DCFP, Marten scheduled a Tues. Oct.18 hearing on the matter.  He may be reconsidering his hasty addition of the clinic to the current injunction.

Marten is a federal judge appointed for life; he can only be removed by Congress and it hasn’t impeached any federal judge in many decades. But one thing judges don’t like to do is rack up appellate court reversals –

especially the kind of rebuke Marten was dished in 2006 when his preliminary injunction favoring abortion clinics was overturned.

Marten had issued an injunction to stop Attorney General Phill Kline’s official interpretation that the law required

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Judge Marten lets ACLU/Kansas clinic join PP lawsuit

Judge Marten, upholds clinics, not state law

Today, federal Judge Thomas Marten unsurprisingly acquiesced to ACLU’s petition that the Dodge City Family Planning (DCFP) clinic join the Planned Parenthood lawsuit over Title X money distributed by the Kansas state health department.

The clinic wants immediate reinstatement of their prior Title X state contract for nearly $40,000 (plus attorney fees), and wants the state proviso declared void as violating the Supremacy Clause.

Marten has already awarded $58,000 to Planned Parenthood without a state contract and the state is appealing his rulings to the Tenth Circuit Court of Appeals.

Marten’s ruling today bristled at the state’s allegation that DCFP was ‘judge-shopping’, that is, piggy-backing onto a case where the judge is already favorably directing funding to clinics.

There’s no question this is an activist judge of whom the State legal team accuses of “emasculating” state sovereignty and repeatedly ruling in error about the legitimacy of the state funding proviso.

Marten defended the addition of the financially-failing DCFP clinic because “it was stripped of Title X funding essentially as collateral of the Kinzer Amendment’s redefinition of eligibility standards.…[and] asserts a Supremacy Clause claim similar to that advanced by plaintiff Planned Parenthood.”

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ACLU wants more Kansas money issued by Judge Marten

Now that Judge Thomas Marten has been found willing to violate Kansas state sovereignty by ordering Title X payments to Planned Parenthood without a contract, the ACLU is demanding another failing clinic get a piece of the action.

In August, Marten granted Planned Parenthood a halt to 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.

Kansas’ legal team argues that although Marten “found no specific conflict between the language of the state statute and the federal statute, [he] nonetheless struck down the statute because of the Legislature’s alleged bad motive.” (The bad motive is allegedly punishing abortion providers.)

Kansas has been forced already to fork over a payment of $58,000 to Planned Parenthood and last week submitted a 144-page appeal to the 10th circuit court to overturn Marten’s ruling.

Now the Dodge City Family Planning Clinic is complaining 40% of their funding ($38,000) was lost due to exclusion under the new Title X proviso, and thus they should be added as a party in the Planned Parenthood lawsuit. (Actually, this makes the state’s case that the proviso was neutral in applicability and did NOT target abortion providers!)

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Kansas to pay PP, will continue appeal of bad ruling

UPDATE, Sept.7:  payment of $58,000 has been made to Planned Parenthood.
Yesterday, Judge Thomas Marten ordered an immediate state payment of approximately $80,000 to Planned Parenthood of Kansas Mid-Missouri for Title X family planning services.

The Kansas Attorney General’s Office issued this statement this morning to Kansans for Life: “The state will comply with the Judge’s order but will continue its appeal to the Tenth Circuit United States Court of Appeals.”

It’s mind-boggling that this judge thinks he has the authority to give taxpayer money to Planned Parenthood with no legal basis.

Marten continues to pretend this is a free speech case in which Planned Parenthood was denied participation as punishment for their abortion involvement.  However, the Kansas budget provision being sued, that prioritizes full service public clinics, also resulted in a lack of a Title X contract for another ‘family-planning-only’ business unrelated to Planned Parenthood or abortion.

The judge ignores both the fundamental contractual issue and the state’s rock-solid objections:

1) There is no federal right to apply for, or receive, Title X funds from the state; thus Planned Parenthood has not been denied any right that Marten should rectify.
Only the federal government must accept applications for Title X grants, thus Planned Parenthood can only claim the right to apply directly to HHS for a grant, as other Planned Parenthood businesses have done in some states.

2) The Eleventh Amendment governing state sovereignty bars any judge from entering a mandatory injunction requiring the state to enter into contract with Planned Parenthood.
Planned Parenthood’s suit demands that the state “honor their contracts” but there is no 2011-2012 contract with Planned Parenthood to honor/restore. This is the third time Marten has ruled on the case and ignored this foundational issue.

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Kansas forced to prop up failing Planned Parenthood

Wichita's money-losing Planned Parenthood

UPDATE, Aug.30, 5:20pm: Without answering the contractual issues, Judge Marten late today ordered an immediate quarterly payment from the state to Planned Parenthood, without any bond.

“Planned Parenthood is threatening to close its Hays clinic this Friday if its federal family planning funds aren’t restored by Sept. 16,” writes The Kansas City Star.

That money is not “its” funding. The Title X taxpayer funding belongs to the state taxpayers, to be distributed by the health department (KDHE) . KDHE head, Dr. Robert Moser, said,

“Title X was not intended to be an entitlement program for Planned Parenthood.”

But The Star (recipient of Planned Parenthood’s 2006 media award) –as well as the presiding judge in the lawsuit, Thomas Marten– continue to fundamentally misstate the situation.

Yes, Planned Parenthood of Kansas Mid-Missouri annually got some of Kansas’ Title X money for its outlets in Hays and Wichita.  But so did another private business, Dodge City Family Planning Clinic.

All three no longer qualify for funding in Kansas as they are not providing preventative and primary care, in addition to reproductive-related services, as now required by state law.

The Dodge City business has not sued for “its” money, but Planned Parenthood has, employing three specialized law firms to wrongly argue that federal law forbids state discretion in selecting subcontractors— which it does not.

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Planned Parenthood hearing set, another business complains

August 1 is the newly-set hearing date for Planned Parenthood of Kansas Mid-Missouri to plead their case that their “free speech” rights have been violated because they no longer qualify for approximately $330,000 in Title X family planning funds.

But another private business is also complaining that they no longer qualify for $39,000 in tax-funded help – the Dodge City Family Planning clinic.

The southwestern Kansas facility complains they lost funding even though they do not have abortion connections, but the new Kansas Title X priority is silent on abortion. (see section 57 at Kansas 2011 Budget)

Unlike some other states that specifically ‘defunded’ the abortion giant Planned Parenthood, the Kansas budget for July 1, 2011 – June 30, 2012 instructs the department of health to prioritize Title X to full-service health facilities: first, to public health clinics, and second, to private hospitals and clinics.

Thus, all Title X recipients must offer primary and preventative care, which –by definition– cuts out specific-agenda health facilities that offer only sex-related services.

Kansas has the right to adjust financial priorities, and thus chose to use Title X to help support indigent comprehensive health care for young and old citizens.  The fact that at least one other family-planning-focused facility has been passed over– along with 2 Planned Parenthood businesses– just shows the recipient qualifications have nothing to do with “free speech.”

At the end of June, HHS notified Kansas that it will distribute $2.6 million in tax funding under the Title X family planning act.  Kansas has over 50 qualified health centers eligible for some of the funding, and those recipients must also match 40% of the Title X grant with local funds.

The distribution process has been progressing and, as reported in the media, some facilities have already been given Title X contracts.  By the end of August, KDHE must confirm their amended list of grantees with HHS.

Read related Lifenews story here.

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