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 all instances of statutory rape be reported, with law enforcement deciding if they were consensual or predatory. The abortion clinics demanded they could selectively report.
In that ‘Aid for Women’ case, the Tenth Circuit Court of Appeals cited Marten for “abuse of judicial discretion” which is defined as a ruling “without rational basis from the evidence” or a ruling based on “erroneous factual findings.”
The Court reminded Marten that because “a preliminary injunction is an extraordinary remedy, the right to relief must be clear and unequivocal.” Marten’s injunction order “fail[ed] to adequately analyze issues of irreparable injury, the balance of harm between the private parties, and the public interest.” The Court said Marten was wrong to allow abortion clinics to attain an injunction:
- without “a substantial likelihood of success, for two reasons: minor patients …have no right to privacy in their illegal sexual activity…[and] safeguarding the physical and psychological well-being of a minor is a compelling [state interest];”
- without weighing “whether there would be irreparable injury in the absence of this preliminary injunction;”
- by declaring without any evidence that the “injunction would not discernibly harm the public interest because… there were no “discernible problems.”
Marten ruled that abortion privacy trumps state law on reporting criminal sex abuse. The Court rebuked his errors in undervaluing the harm to the public done by obstructing the state with unwarranted injunctions.
Marten had not seemed to take that rebuke to heart when he issued his August rapid-fire injunction in favor of Planned Parenthood (his 16 page ruling was issued less than 4 hours after the hearing!) Could he possibly be reconsidering his actions?