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Archive for January, 2016

Hon. Thomas Malone

Appellate Chief Judge Malone

On the 43rd anniversary of Roe v. Wade, Kansas pro-lifers groaned when they heard that the state Court of Appeals had tied 7-7, meaning that a lower court’s ruling would stand and, with it, a temporary injunction on our historic ban on dismemberment abortions.” An appeal is being quickly drafted by the office of Attorney General Derek Schmidt to the state Supreme Court.

The “Unborn Child Protection from Dismemberment Abortion Act” became law in Kansas in April, just days before Oklahoma enacted the law. The Act prohibits one specific method of abortion—a torturous, piece by piece, dismemberment of a living unborn child.

Shawnee District Court Judge Larry Hendricks was the first judge in the nation to review the matter. Hendricks so much loved the abortion attorneys’ arguments (inventing a previously undiscovered fundamental right to abortion in the 1859 Kansas Constitution) that he had them pen his temporary order for injunction! (Didn’t know judges could do that, did you?)

After the state appealed Hendricks’ injunction, all 14 members of the Court of Appeals heard arguments from both sides on December 9.

Attorneys for the plaintiffs (a father and daughter team of abortionists) asserted that Article 1 and 2 of the Bill of Rights of the state Constitution expressly contained a liberty right to abortion which must be interpreted the way the due process section of the Fourteenth Amendment to the U.S. Constitution was interpreted in Roe v Wade.

Seven appellate judges, in the dissent authored by Chief Judge Thomas Malone, used careful reasoning and a strict constructionist approach to opine that there is no ‘independent state-law right to abortion” and “there is nothing in the text or history of Articles 1 and 2 …to lead this court to conclude that these provisions were intended to guarantee a right to abortion.”

Chief Malone’s dissent notes that the Kansas Bill of Right predates the Fourteenth Amendment and to accept “such a broad reading” of the Bill of Rights, which “does not contain the same language” as the Fourteenth Amendment and “was ratified under different historical circumstances, would go well beyond the apparent intent of its framers.”

As the Attorney General defense team has consistently argued, abortion in Kansas was outlawed– even before the state bill of rights was ratified— and broadly criminalized thereafter except to prevent the death of the mother in an emergency.

Malone’s dissent highlights the essential tension, “[A]bortion places the pregnant women’s liberty interest directly at odd with the unborn child’s right to life. The balancing of these interests is a matter of public policy” which is under “the charge of the state legislature, not the court.” Moreover,

“The proper question to ask and answer is what rights the makers and adopters of the instrument intended to protect…not what rights today’s judges would like to see in our state constitution.”

Appellate Judge Leben

Judge Leben

The other half of the Court of Appeals does not subscribe to judicial restraint and agrees with the Hendricks ruling. Six of them united behind an opinion written by Judge Steve Leben. They say that Articles 1 & 2 of the Bill of Rights are sufficiently equivalent to the Due Process Clause of the Fourteenth Amendment.

Atcheson

Judge Atcheson

JUDICIAL ACTIVISM
In a separate concurrence affirming the Hendricks ruling, Judge G. Gordon Atcheson distinguishes his support from the Leben opinion. He finds that Article 1 and 2 provide even greater protection for abortion than the Fourteenth Amendment. And this is a case study in rhetoric over legal analysis.

For example, Judge Atcheson refers to the dismemberment of an unborn child as if it is merely “unaesthetic,” while (incorrectly) asserting that the state cannot prohibit a barbaric abortion procedure. He wrote, “The government cannot impose upon an essential right because some exercise of the right may be unaesthetic or even repulsive to some people.

He ignores the example that horrific partial-birth abortions are illegal, as upheld in the 2007 Gonzales ruling of the U.S. Supreme Court, but that may be because he disdains it so much: “Women have a right protected in Article 1 to exercise reproductive freedom as an essential component of their self-determination. To suggest otherwise simply inflates that women are flighty creatures in constant need of guidance and protection to be supplied either by menfolk or, in this case, a meddlesome government … That sort of paternalistic claptrap animates the majority opinion in Gonzales v. Carhart.”

Another of the examples of Judge Atcheson’s pro-abortion feminism: “Although the general societal and legal acceptance of gender equality hasn’t yet reached every quarter, Article 1 doesn’t bend to the obdurate views of those who would cling to the days when white men were the acknowledged masters of the realm.”

The caliber of Judge Atcheson’s writing and the extreme reach taken in the Judge Leben group opinion are distressing. The state of Kansas defense team has consistently maintained that the notion that there exists a state constitutional right to abortion “is a fantasy.” Half of the appellate court had the wisdom to recognize it.

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APpellate court

KS Court of Appeals

The Kansas Court of Appeals majority ruling Friday was a 7-7 tie which means the Unborn Child Protection from Dismemberment Abortion Act is not voided, but the lower court injunction remains in place and the ban is not in effect.

Seven judges support one appalling method of tearing apart LIVING well-formed unborn babies –due to the novel claim that abortion is included in our state constitutional bill of rights. This is an activist, offensive ruling not reflective of sound analysis.

Seven judges wrote in dissent, disagreeing that the dismemberment ban must stay blocked. Those seven judges included two appointed under pro-abortion Gov. Sebelius, showing that the recognition of the state’s right to prohibit an unbelievably heinous and barbaric abortion method –as the U.S. Supreme Court in the 2007 Gonzales ruling clearly did– is an issue beyond partisan labels.

The resulting split ruling affirms the recent improvement in the nomination of Appellate judges and underscores Kansans for Life’s promotion of reform of the nomination process for state Supreme Court. .

Of the 14 total appellate court members, the newest member was picked with the “federal model” protocol (Kathryn Gardner, part of the dissent) while 13 were picked under the “Missouri plan” method in which:

  • nominees are chosen secretly within a commission whose majority is chosen by a disproportionately tiny group of registered attorneys. The die is cast by the commission chief, chosen last time by 2,500 attorneys–not at all proportionally representative of the 1.7 million registered Kansas voters.
  • nominees forwarded to the governor are chosen with various motivations by the commission with a nod to the policy preferences of the sitting governor (and candidates with recorded donations to the governor), but the choice is forced on the governor, for if he/she rejects all three, the Chief Justice gets to pick one.

Kansans for Life appreciates any judge who respects the rule of law. Our support for judicial selection reform is not about suggesting that it is impossible for a “Missouri-plan” judge to arrive at a correct result– that would be absurd.

Rather, we support reform because increased democratic accountability on the front end of the process builds societal respect for the judiciary. On balance, that is likely to result, over the long term, in more judges who will exercise judicial restraint.

KFL has held this position in support of judicial selection reform since 2005, under Gov. Sebelius– and thus is independent of the existence of a Governor’s policy on abortion because the public accountability rests in the Senate confirmation process.

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Gov. Brownback flanked by KFL's Mary Kay Culp and Archbishop Naumann

Gov. Sam Brownback, flanked by KFL’s Exec. Director, Mary Kay Culp, and KCK Archbishop Joseph Naumann

Neither the D.C. blizzard nor the legal disapproval of half of the Kansas state Court of Appeals stopped the Pro-life Religious Council from giving their award to Gov. Sam Brownback Friday for Kansas’ historic passage of The Unborn Child Protection from Dismemberment Abortion Act.

The result of a rare 7-7 tie decision Friday by the Kansas Court of Appeals is that the appalling opinion of Shawnee District Judge Larry Hendricks’ is upheld–for now. Judge Hendricks ruled that barbaric dismemberment abortions cannot be outlawed because the 1859 Kansas Constitution contains a right to abortion.

The dismemberment ban is not voided, but it remains enjoined from going into effect while litigation continues. The ban will be vigorously defended by the legal team of Attorney General Derek Schmidt.

"shower curtain"sign by Kansas pro-life activist, Vonda Wiedmeyer

“shower curtain” sign held up in the audience by Kansas pro-life activist, Vonda Wiedmer

In his acceptance remarks, Gov. Brownback urged that Kansas’ strong bipartisan passage of this dismemberment ban be repeated across the nation and at the nation’s Capitol.

Fr. Frank Pavone, who hosted the award ceremony, observed that the Appeals Court ruling shows that, “the battle for the unborn child’s civil rights will go back and forth for now. We know, however, that the truth of that child’s humanity will ultimately triumph over the lies of the abortion industry.”

Among attendees at the PRC presentation were Mary Kay Culp, Executive Director of Kansans for Life, and Archbishop Joseph Naumann, head of the Catholic Archdiocese of Kansas City in Kansas. The Kansas Catholic conference had testified in support of the ban:

“The fact that this legislation is even necessary is an indictment of our society and even the very notion of human progress…[when] we in the here and now allow our children to be torn apart, piece by piece, limb by limb.”

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stop dismembering posterA temporary injunction will remain in place against SB 95,  the Unborn Child Protection from Dismemberment Abortion Act, after the Kansas state Court of Appeals ruled today in a  7-7 tie in the matter.

The Act bars a gruesome method of abortion in which a well-developed, living, unborn child is torn apart piece by piece with sharp metal tools.

Attorney General Derek Schmidt’s office will continue to rigorously defend this law.

This outrageous ruling needs to be heard by the state Supreme Court without delay.

The law was designed to pass muster with the U.S. Supreme Court; abortion attorneys apparently recognized that fact, thus choosing to file suit in state court, seeking the creation of a state right to abortion.

The dismemberment ban was blocked June 25 with a temporary injunction from Shawnee District Court Judge Larry Hendricks. The lawsuit was filed and argued by the New York-based Center for Reproductive Rights on behalf of the Overland Park Center for Women’s Health that had previously sued two other Kansas pro-life laws that have not proceeded to trial.

Judge Hendricks completely accepted the abortion industry claim that the basis for a federal “right” to an abortion also is found in the Kansas constitution. Hendricks misstated federal jurisprudence on abortion, and ignored the key 2007 U.S. Supreme Court Gonzales ruling, which said:

Casey [the 1992 Supreme Court decision] does not allow a doctor to choose the abortion method he or she might prefer …[and physicians] are not entitled to ignore regulations that direct them to use reasonable alternative procedures.”

Even pro-abortion justices of the U. S. Supreme Court have acknowledged that the dismemberment of a living unborn child is as brutal and inhumane a method of abortion as the partial-birth abortion procedure, which is now illegal throughout the country.

It was a valid act –both legally and morally–for the Kansas legislature to curb dismemberment abortions.Kansans were outraged to learn of this heinous method of shredding apart innocent unborn children,” said Kansans for Life executive director, Mary Kay Culp.

Kansans for Life submitted a friend of the court brief for the appeal.

SB 95 is supported by U.S. Supreme Court language that upholds the state’s right

  • to show respect for the developing unborn and
  • to insure the integrity of the medical profession which it regulates.

Kansans for Life is confident this law will eventually be upheld—mirroring the long, but successful partial-birth abortion battle in which the U.S. Supreme Court eventually acknowledged the validity of pro-life legislation.

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Gov. Sebelius celebrated re-election with abortionist Tiller

Gov. Sebelius celebrated her 2006 re-election with abortionist Tiller

As Kansans prepare to attend events in Topeka  and Washington D.C. marking the 43rd anniversary of the tragic Roe v Wade ruling, it is instructive to look back over the past ten years to appreciate the progress we’ve made.

In 2005, Kansans were furious with the pro-abortion policies of Gov. Kathleen Sebelius –who had received abortion financial backing for many years:

  • her administration blocked late-term abortion investigations by pro-life Attorney General Phill Kline;
  • she helped the state medical board hush up the death of a mentally disabled teen at George Tiller’s Wichita abortion clinic;
  • she vetoed a desperately needed law to regulate and inspect abortion clinics;
  • she deleted grant money budgeted for non-profit organizations that provide care to pregnant women.

In 2006, the abortion industry money machine and Kansas newspapers revved up to help Gov. Sebelius win re-election during which time:

  • she publicly appeared with Planned Parenthood head, Cecile Richards, railing against AG Kline for trying to prosecute abortion lawbreakers;
  • social justice coalition meetings and phony online pro-life support groups were invented to downplay her abortion extremism;
  • she campaigned for AG Paul Morrison– who would win and protect abortionists from prosecution before resigning in a sex scandal;
  • she ignored her Archbishop’s challenge to “join the Culture of Life.”

From 2007-2009, Sebelius

  • tried to force legislation promoting unethical research that destroys humans at the embryonic stage;
  • vetoed, for the second time, the abortion clinic regulation law;
  • appointed a new AG who blocked prosecution of Planned Parenthood and Tiller;
  • was confirmed as HHS secretary (claiming “she had tried to reduce abortions”) and then vetoed a law to end Kansas late-term abortion corruption.

There was much more, but this should suffice to remind us how we have left what was a horribly demoralizing time for pro-lifers.

Kansas was known as the late-term abortion capitol under a protective Gov. Sebelius and corrupt key government bureaucrats. (read more here)

But pro-lifers are persistent… and Kansans for Life has partnered with them across the state to

  1. help found and support pregnancy help centers;
  2. advance excellent legislation that inspires other states; and
  3. help elect a pro-life Governor, Sam Brownback, and a pro-life legislative majority in both chambers.

As we mark the day of mourning tomorrow with prayer and exhortations to reform the judiciary and hold our lawmakers accountable, we can be grateful for the challenges that did not stop us in Kansas from fighting to protect the unborn.

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new year babyA recent article in the abortion-supporting magazine, Slate, was headlined, ” The Year Unthinkable Became the New Normal,”  with this elaboration,

The past year might have been the worst for abortion rights in America since Roe v. Wade was decided 42 years ago.”

Slate begins the list of lamentations with what they termed the “propaganda coup” of the videos from the Center for Medical Progress in which Planned Parenthood clinics and National Abortion Federation conventions were infiltrated to collect direct testimony from abortionists about methods used for fetal tissue-harvesting. (see recap video below)

PLANNED PARENTHOOD IMAGE DAMAGED
Planned Parenthood’s mantra on those embarrassing videos –echoed faithfully by the mainstream media– is that the hidden camera videos were “selectively edited,” but two forensic examinations found that to be false. As The Federalist reported, both forensic reports, including one commissioned by Planned Parenthood, “assert that there is no dubbing or alteration to the audio and no evidence of misrepresentative editing.”

The CMP videos, that were released beginning in July, have resulted in five separate congressional investigations and a newly announced lawsuit from Planned Parenthood against CMP for racketeering, trespassing and secret taping.(see here)

At the outset, Planned Parenthood head, Cecile Richards, apologized for the tone and statements in the videos and then testified at length to Congress, revealing that

  • 86 % of Planned Parenthood’s revenue (outside of federal funds) comes from abortions;
  • no PP facility offers mammograms, nor do they even have the equipment;
  • the “non-profit” PPFA in 2014 made $127 million in excess revenue after expenses (what normal people call a “profit.”)

PRO-LIFE POLITICIANS EMBOLDENED
Slate
complained that, “Support for abortion bans without exceptions for rape or incest became the normative position among Republican presidential candidates.  [Note: Kansas has no rape/incest exceptions in state abortion restrictions.]

It is true –and a welcome development– that this year’s GOP presidential primary debates have revealed a new vigor for deploring abortion and calling for the end of tax support for the nation’s abortion giant, Planned Parenthood. Political courage is infectious; the U.S. Senate defunded Planned Parenthood for the first time ever, although President Obama vetoed the measure.

That the public responded positively to these events is an understatement.

But pro-abortionists want to convince themselves otherwise, and quote the reasoning of the president of NARAL Pro-Choice America, “We are experiencing the culmination of a decades-long strategy by anti-choice extremists…The far-right takeover of the GOP, a project that’s been underway for more than 40 years, is complete.”

This “take-over” is in reality a reflection of the growing self-identification of Americans as pro-life.

Indeed, 2015 was a milestone year for Republican control of state legislatures, (see chart) with the party dominating both houses in 30 states, the highest number since at least 1978. Republicans used their electoral strength to pass more than 50 state pro-life laws.

DISMEMBERMENT BAN NOTED
The story makes only an indirect referral to the historic “Unborn Child Protection from Dismemberment Abortion Act” passed in Kansas and Oklahoma in April. A long-time abortion advocate asserts, “What we’re witnessing is the culmination of a kind of group defamation against women who have abortions as people who kill and dismember unborn children.”

Wow, that’s a whopper!

Supporters of the dismemberment ban have only excoriated abortionists and their businesses, not women.

In fact, most women who have obtained dismemberment abortions were never told that the abortionist used sharp tools to painfully pull apart their still-alive unborn child until he/she bled to death! They most often just see a reference to “removing the pregnancy.”

Slate concludes, “2015 has been a lesson in how the once unthinkable becomes the new normal—and it’s happened with a Democrat in the White House. If a Republican wins the presidency next year, we will likely see 2015 as an entirely different sort of inflection point. Just because things are as bad as they’ve been in 40 years doesn’t mean they can’t get worse.”

From our perspective, the lives of unborn children are depending on us to insure the abortion industry in 2016 has another bad year.

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sam KFL photo

Gov. Brownback

In an upbeat state-of the state address Tuesday evening, Gov. Sam Brownback said, “We have become the shining city on the hill and the champions for life.”  The  pro-life excerpts from the speech are here.

Gov. Brownback has asked for a change in the judicial selection method for the State Supreme Court which aligns with KFL’s top legislative priority this year.

KFL opposes the secretive deliberations that choose Kansas Supreme Court justices. Any change in selection method must be approved first by 2/3 of the House and Senate and then gain the assent of the public on the the 2016 ballot.

Brownback supports dumping the current selection method in his speech:“The Legislature should put before Kansas voters a proposed Constitutional amendment for a more democratic selection process for our Supreme Court justices. Kansas is the only state in the country where the selection of Supreme Court justices is controlled by a handful of lawyers.[and]…removes the people of Kansas from the process of selecting judges.”

As an example of an unprincipled judiciary, a Kansas district court has issued a temporary injunction on the Unborn Child Protection from Dismemberment Abortion Act and declared a right to abortion exists in Kansas’ pre-Civil War constitution! Kansans now await a ruling from the State Court of Appeals –at any time– on that injunction.

PLANNED PARENTHOOD DEFUNDING
no PPWhat  the mainstream media took note of was the Governor’s announcement on Planned Parenthood. “Today, I am directing [KDHE] Secretary Susan Mosier to ensure that not a single dollar of taxpayer money goes to Planned Parenthood through our Medicaid program I welcome legislation that would enshrine this directive in state law.”

In the Associated Press coverage, the lobbyist for Planned Parenthood of Kansas Mid-Missouri said that $61,000 was at stake and that they intend to fight for it. Medicaid provision for low-income health is jointly subsidized by federal and state monies.

Under Gov. Brownback, Kansas has already insured that $370,000.00 in annual Title X reproductive health money for low-income patients is prioritized to full-service public clinics and hospitals. Planned Parenthood–failing to meet those qualifications– challenged this annually renewed prioritization in court and lost at the federal appellate level.

Brownback received extended applause last night after this segment of the speech: “In 2011, I signed legislation stopping most taxpayer funding from going to Planned Parenthood.  The time has come to finish the job. Planned Parenthood’s trafficking of baby body parts is antithetical to our belief in human dignity.

The AP also quoted Kansas Attorney General, Derek Schmidt, as promising to defend withholding this funding from Planned Parenthood.

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