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Posts Tagged ‘Judge Thomas Marten’

pp money (2)A three-member panel of the Tenth Circuit Court of Appeals today overturned a Kansas federal district court ruling that Planned Parenthood was unfairly disfavored and penalized by a 2011 funding authorization. The case was sent back to Judge J. Thomas Marten, who had remarked that he expected to be overruled in this matter.

The case stems from a 2011 lawsuit filed by Planned Parenthood of Kansas & Mid-Missouri on behalf of their Kansas abortion-referral facilities in Wichita and Hays. Both clinics became ineligible to receive Title X federal family planning funding when the state enacted an annually-renewed proviso that such money go to full-service public health clinics and hospitals.

Planned Parenthood claimed they would be “irreparably damaged” without “its” Title X funding. However, Dr. Robert Moser, head of the state health department that selects recipient facilities, described Title X funds as belonging to the state taxpayers, remarking that, “Title X was not intended to be an entitlement program for Planned Parenthood.”

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.

Planned Parenthood had argued that they were losing out on money due to impermissible “anti-abortion” animosity from the legislature and Gov. Sam Brownback. But the Kansas proviso doesn’t mention anything about providing or supporting abortion; it merely prioritizes that Title X grants go to local health department clinics.

Planned Parenthood also claimed that the state could not impose additional requirements for facilities to obtain Title X funding–in this case, maximizing use of a federal grant program to support health care for the poor. Court documents revealed that women at or below poverty level comprised merely 15% of Planned Parenthood’s Kansas clients, while

similarly economically disadvantaged women comprised 78% of those served by the health department in Wichita, which would have received the Title X grants.

Judge Marten ruled in August 2011 that the Kansas health department must continue to fund two Planned Parenthood businesses while litigation continued. In October of 2011, he ordered additional funding to another family planning clinic in western Kansas, which closed 14 months later. To date, at least $400,000 has been paid out to those three clinics by Marten’s order.

In the last three years, abortion advocates and clinics have sued four Kansas pro-life measures:

  1. Kansas won the first lawsuit, challenging a 2011 law that excludes elective abortion from private health insurance coverage without a “rider.”
  2. Kansas has won the appeal (today) that Planned Parenthood had no standing to sue in federal court for perceived discrimination in Title X eligibility.
  3. An abortion-friendly state judge has stalled litigation on the 2011 pro-life abortion clinic licensure law, under injunction.
  4. Abortion interests failed to block the comprehensive 2013 Pro-Life Protections Act with the exception of two tiny provisions which are being addressed.

Kansas pro-life legislation is well-drafted and being defended by talented attorneys working for the state Attorney General.

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Abortion supporters continue their brazen complaints that Kansas has already spent nearly $480,000 in legal fees defending 3 pro-life laws enacted in 2011.

But it’s those very abortion supporters that are forcing that drain in state resources, for profit and ideological motives, plain and simple.

Let’s look at the three lawsuits and examine what is really at stake.

1. The family planning funding prioritization is a new measure, attempted this year in differing forms by a half dozen states, with Kansas having arguably the strongest legal ground.  Wichita Judge Thomas Marten placed the law on hold by injunction and ordered supplemental money sent to the three businesses that did not meet the new criteria. The Kansas Attorney General has appealed those actions to the 10th Circuit appellate court, and a ruling on the merits of the appeal is expected at any time.

This lawsuit was filed because financially-failing Planned Parenthood branches in Wichita and Hays, and one independent business in Dodge City, were not going to get nearly $375,000 in Title X state subsidies under the new law. No services formerly provided to Kansas women were being eliminated.  In fact, the only change was that the state would only contract for reimbursements with public clinics serving the poor, and in fact, would provide BETTER access to a full range of health care.

This lawsuit is little better than extortion, backed implicitly by the pro-abortion Obama administration and the federal agency that controls Title X money–HHS, headed by former Kansas governor, Kathleen Sebelius.

2. The law banning coverage of elective abortion in private insurance plans without a separately purchased rider, is not new.  It survived past court challenges and has operated in other states, like Missouri, for decades. Part of eastern Kansas has been covered this way by Blue Cross during that time! This law is operating without an injunction, but is headed for trial next year.

This law was sued by the ACLU (American Civil Liberties Union) ostensibly on behalf of unspecified women who can’t afford to pay for their own abortions.  But the suit is really a steppingstone to changing the “privacy” basis that undergirds the so-called legal right to abortion. The ACLU is still searching for courts willing to rule abortion is healthcare that must be paid for under the constitutional guarantee of “equal protection.”

Although abortion lawyers have pressed this “gender equality” argument unsuccessfully for decades, they are back at it again, at OUR taxpayer expense.

3. The third lawsuit (actually a series of 3 suits) has blocked the new law instituting state licensure, oversight and inspection of abortion businesses sought by Kansans since 2002. Currently there are only 3 abortion sites in Kansas, all in the Kansas City area, although there are threats to open a new one in Wichita this summer.

After a public fuss (and a suit they filed and then dropped) the Overland Park Planned Parenthood met the new minimum standards for licensure. The other two clinics didn’t, and sued the preliminary agency regulations from KDHE, while securing an injunction. So the law is not currently in effect.

Now get this: the pro-abortion voices complaining loudly about legal fees, themselves wasted a bundle when they filed suit in federal court in July, and then switched their game plan to file suit in state court in November. So last week, lawyers for the 2 clinics formally dropped the first lawsuit and are itemizing months of legal expenses– which will get paid by state taxpayers– if the abortion team prevails in the newer suit.

Next post: the real reason the abortion clinics’ lawyers changed from federal court to state court.

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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 (more…)

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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 (more…)

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Three politically-charged events are actually deeply interlocked: unjustified injunctions from Judge Thomas Marten, a state Supreme Court-supervised panel ruling against Phill Kline, and the defense lawyer for Kris Neuhaus showing abortion files without permission.

The state of Kansas is currently appealing a Title X injunctive order for Planned Parenthood from Judge Marten, which echoes a situation seven years ago when he issued an abortion-helping preliminary injunction that was  overturned on appeal. Then Marten reinstated the injunction permanently!

In that case, abortion clinics and counselors had sued then-Attorney General Phill Kline for issuing an opinion that clinics needed to report all pregnant minors to law enforcement agencies.  Under child protective law, all physicians, counselors & teachers were required to report children injured (now the word is “harmed”) by physical, mental, or emotional abuse or neglect, or sexual abuse.”

Kline was aiming at prosecuting unreported statutory rape by adult predators, not ‘Romeo-Juliet’ pregnancy situation. For example during 2002-2003, 168 underage pregnant girls were aborted in Kansas but abortion clinics only reported 2!

Marten ruled that Kline’s opinion threatened the “informational privacy rights” of minors and that such was an ‘irreparable harm’ that trumped state child rape law.

Now we come to the second entangled matter: Thursday’s 3-person panel issuance that Kline’s professional actions violated attorney standards.

Notably, Kline is being punished by abortion defenders-in-high-places for daring to prosecute the abortion industry. The second charge of the panel is Kline’s supposedly deficient legal advice about abuse reporting to a grand jury investigating Planned Parenthood. In actuality, pro-abortion attorneys tried to confuse lay people on the jury about the Marten injunctions in relation to subpoenas for clinic records.

Invading abortion privacy/secrecy has been the heart of Kline’s supposed “crime” as formulated by the abortion cartel, former Gov. Kathleen Sebelius and “third wave” feminist–and state Supreme Court Justice– Carol Beier.  It is the Democrat appointees who now dominate the State Supreme Court, in control of the ethics action against Kline. Language in the ethics charges come straight out of abortion attorney filings!

Medical privacy –not child safety–was the war cry used to dump Kline, after the courts had successfully tied up his prosecution of illegal late-term abortion until days before his 2006 re-election vote. And not one identity of an abortion patient has EVER been made public from Kline’s investigations or during file-handling by citizen-petitioned grand juries.

This is where the third matter of Neuhaus becomes entwined.  Eleven of the very abortion records ferreted out by Kline–at the expense of his political career–are being used by the state Board of Healing Arts i (more…)

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Judge Marten

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.” (more…)

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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!) (more…)

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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. (more…)

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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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Wichita federal Judge Thomas Marten was verbally raked over the coals for his “zeal to find a bad legislative motive,” causing him to get so many points of law just plain wrong when ruling in favor of Planned Parenthood of Kansas and Mid-Missouri last Monday.

In the Kansas Attorney General’s appellate brief filed Tuesday in the 10th Circuit Court of Appeals, the state seeks to immediately halt Judge Marten’s injunctive action against a new Kansas proviso restricting Title X family planning contracts.

The appeal stresses it’s impossible to find a direct –or even indirect—conflict between federal Title X law (that constrains only HHS) and the Kansas proviso prioritizing public health clinics as subcontractors. Judge Marten

“may not like the plain meaning, and may wish the statutes said something else, but they do not… it simply cannot be that the right to obtain abortion in certain limited circumstances, or even to advocate for abortion, trumps both federal and state spending authority, as well as the State’s sovereign immunity.”

Marten’s ruling was taken apart, point by point, in a 24-page brief penned by James Armstrong of the Foulston-Siefkin law firm, hired to handle this issue by state Attorney General Derek Schmidt.

Armstrong argues that Marten “added words” to the Title X federal statute and wrongly decreed (more…)

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