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
- private providers,
- 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
- 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 the right not to be denied to apply for “direct grants and contracts” from HHS extends beyond grantees (such as the Kansas Health department). The state rebuts that the direct grantee has no mandates on whether, or how, they choose “delegate agents’ and that the eligibility proviso does not conflict with the purpose and functioning of Title X.
An exhibit was introduced –the HHS Notice of Grant Award to Kansas- which itemized the priorities of Title X beyond family planning to include “overall health”, flu vaccinations, and mental health and social services. The state’s attorney noted that dovetails with the prioritized comprehensive health care eligibility being challenged!
Near the close of the hearing, Marten said he “won’t be surprised if the 10th circuit reverses him” in this Title X matter but that would be a good thing as “he invariably agrees with them.” (Go figure that one!)
MARTEN MISSTATES EFFECT OF PAST BAD INJUNCTION
Mandatory injunctions are disfavored and require a “heightened showing” of probable success, irreparable injury, a balancing of harms, and defense of the public interest. Marten was rebuked for this failure in the Aid for Women case.
Judge Marten briefly mentioned this suit in the courtroom Tuesday, saying when the Court overruled him for lacking the requisite justifications, it led the legislature to rewrite the law. That’s not only an arrogant defense of issuing injunctions, but it is a grave misunderstanding !
The Aid for Women child-sex abuse reporting provision was changed because it was a tiny part of an entire section of the statute book on minors being revised. This section had been worked on for years in a special judicial committee, unrelated to the Aid for Women case.
The revised section on minors was passed into law in spring 2006, before the Court ever published its written rebuke of Marten. The law was held back from going into effect until Jan.1, 2007. The abuse reporting provision only altered one word (from “injury’ to “harm’). In fact, that one little word swap arguably strengthened the interpretation Marten objected to!