With a “refusal to rule” late Friday afternoon, a local judge continues to thwart state oversight of abortion facilities as permitted under the pivotal 1992 Planned Parenthood v Casey U.S. Supreme Court ruling.
To the consternation of pro-lifers, the 2011 Kansas abortion clinic licensure law remains blocked in the Topeka court of District Judge Franklin Theis.
On Friday afternoon, Judge Theis denied the state of Kansas’ request that he rule on whether the law discriminated against women, as alleged by the litigants, the Overland Park Center for Women’s Health [CWH].
Attorney Sarah Warner, representing the office of Attorney General Derek Schmidt, explained that
the litigants’ “equal protection” claims as a reason to overturn state abortion laws had been rejected 20 times by the U.S. Supreme Court going all the way back to 1977.
In other words, failed arguments should be dismissed.
Warner also told Judge Theis that the Supreme Court has upheld the state’s ‘compelling interests’ in regulating the medical profession and in insuring the health and safety of women inside abortion clinics. Warner referenced the ”jaded” history of unregulated practitioners. She noted that the murder trial of abortionist Kermit Gosnell had unfolded during the law’s passage, adding further evidence of the need of such regulation.
Theis listened to the state argument for nearly an hour, then to the short (approximately seven-minute-long) rebuttal from one of CWH’s five seated attorneys.
Judge Theis then restated his initial position–that “he needs facts” and that both sides should continue to plan for trial. “I don’t think you can make a decision without learning the total picture,” Judge Theis said.
In other words, he ducked the critical question he was supposed to answer: whether certain ‘already settled’ claims should be eliminated and focus on whether the state had indeed issued ‘rational’ medical facility oversight.
THREE LAWSUITS FROM ONE CLINIC
At the conclusion of his remarks, Judge Theis mentioned the ‘elephant in the room.’ This was an allusion to the injunction against Senate Bill 95–the Unborn Child Protection from Dismemberment Abortion Act– in which Larry Hendricks, another district court judge, shockingly held that the Kansas state Constitution contains a right to abortion. That request for an injunction was also filed by CWH.
Judge Theis.commented about the importance of whether such a ruling is upheld, and the fact that it could be headed to the state supreme court, which obviously would have an impact on this clinic law.
Also noted in the hearing was the third lawsuit in yet another district court—also filed by CWH—against the 2013 Kansas Pro-life Protections Act. Although that law is not blocked, the lawsuit challenging it also claims there is a state constitutional right to abortion.
Thus all three suits are linked to the appeal to the Dismemberment injunction ruling in which a single judge believes a hitherto undiscovered right to abortion exists in the Kansas state constitution.
BACKGROUND ON THE LAW
The comprehensive abortion facility licensure law would apply to hospitals, ambulatory surgical centers, and physician offices in which 5 or more elective abortions were performed in a month. The law requires incident reporting, state health inspections, minimum building codes and local hospital privileges for practitioners.
While the law has been stalled, specific provisions defining abortion “for medical emergencies” and in-person physician delivery of abortion pills have been changed in the last two legislative sessions.
The clinic licensure law had immense public support after decades of abortion malpractice including deaths of 5 women following abortions by Kansas-licensed abortionists. A nearly identical licensure law had twice been passed and vetoed in 2003 and 2005 under former Gov. Kathleen Sebelius.