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 that grantees may not freely sub-contract, and must use any qualified applicant—which is simply not in the law. In fact, Armstrong points out that if Marten’s error were really the law, then in those states where Planned Parenthood is the grantee, it could be forced to subcontract with pro-life entities!
Marten is faulted for failing to dismiss “rank speculations” about irreparable harm to Planned Parenthood and accepting their “naked allegation” that clientele could not be handled by the Wichita health department (a multi-million-dollar-funded service, four times as large as the Wichita Planned Parenthood, and annually serving the reproductive needs of 14,000 women and 121,000 WIC families).
As a judge who prides himself on upholding the first amendment (see here), Marten really muddles the free speech and free association issues that Planned Parenthood wrongly assert are being contravened, and then
impermissibly reaches into the government treasury to create—not restore—a new one-third-million-dollar contract for Planned Parenthood.
As a final thought, one trembles to think what a disastrous position Kansas would be in, if Obama’s languishing 10th circuit appellate court nominee, Steve Six, was still Kansas Attorney General and in charge of this case!