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Archive for the ‘Federal lawsuit v Kansas’ Category

CNM PPKMMJust days ago, Planned Parenthood filed suit in federal court to stop Kansas from barring them as Medicaid providers following an executive order by Gov. Sam Brownback to the state health department.

This issue is similar to, but different from, the lawsuit Planned Parenthood lost in 2014 to regain Kansas funding as federal Title X providers. The latter– Title X prioritization of full-service public clinics and hospitals –was put permanently into statute last week in the waning days of the Kansas legislative session.

The plaintiffs of the new lawsuit included three Medicaid-eligible women, two distinct Planned Parenthood entities (the Kansas &Mid- Missouri business and the St. Louis Missouri business) and—wait for it– two midwives who were on staff until recently.

Yes, midwives.

Midwives Victoria Zadoyan and Justine Flory (currently employed in Topeka and Lawrence according to online information) were described in the lawsuit as working at Planned Parenthood of Kansas & Mid-Missouri up until a year or so ago. The lawsuit makes a ridiculous claim that those two midwives’ reputations will be harmed if their Planned Parenthood Medicaid identification numbers are associated with state disqualification for Medicaid provision—even though neither is currently employed by Planned Parenthood.

These midwives should be more worried about how their “reputation” is sullied by their work for Planned Parenthood and their willingness to sue Kansas on behalf of the abortion giant.

ex-PPKMM midwives Flory & Zadoyan

PPKMM past midwives     Flory & Zadoyan

While pro-life readers may be shocked to learn that midwives who espouse a natural childbirth experience could work at abortion clinics, I am not.

I first personally encountered the concept that midwives could be pro-abortion 24 years ago. This was when I was one of a group of pro-life moms doing volunteer counseling outside a Topeka abortion clinic (no longer in operation). We had made a “save,” i.e. had successfully convinced a pregnant woman (call her Jane) not to choose abortion. We helped Jane with her needs until she delivered and held the baby shower for her at my home.

It was at this occasion when Jane shared with us that after we had first dissuaded her from abortion and sent her to medical assistance in town, the nurse there had tried to push her back into choosing abortion. More shocking and horrifying to me was that the “nurse” she named was the midwife who attended one of my children’s births!

The abortion industry has long been pushing to have “mid-level” providers supplant the ever-decreasing number of physician abortionists.

In 1990 a symposium held by the American College of Obstetricians and Gynecologists and the National Abortion Federation recommended nurse-midwives be trained to perform first-trimester legal abortions under physician supervision. One-half of the nurse-midwives who were members of the American College of Nurse-Midwives were polled, and 1,208 questionnaires (71.1%) were returned with these results:

  • 79% opposed federal and state efforts to limit access to abortion;
  • 91% would be willing to refer for abortion;
  • 52% would vote in a secret ballot to permit the performance of abortion by certified nurse-midwives;
  • 57% would be willing to prescribe RU 486;
  • 24% would, or possibly would, incorporate abortion procedures into their practice; and
  • 19% would, or possibly would, perform abortions in an abortion clinic.

That was over 25 years ago and yet some legislators were shocked when Kansans for Life insisted during the closing days of session that new regulations for the independent practice of midwives include a ban on abortion.  The ban was passed.

The “scope of practice” of midwives is intentionally written so broadly that it could be interpreted to include abortion, or it could specifically include abortion.

Adding to that, leading medical groups have been cheer leading their provision of abortion since 1994, including the American College of Obstetricians and Gynecologists, American Academy of Physician Assistants, the American College of Nurse-Midwives, the National Association of Nurse Practitioners in Women’s Health, and the International Confederation of Midwives.

Kansas legislators have successfully shut the door on more abortions by midwives and the latest Planned Parenthood lawsuit shows they were correct to do so.

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judicial activismThe Kansas Supreme Court has deferred examining whether the Kansas constitution contains a right to abortion, as “discovered” in June by a lone district court judge. The state Attorney General’s appeal of the “discovery” thus stays in the state Court of Appeals.

Outside of the state political intrigue surrounding this development, it is symbolic of a national strategy: pro-abortion legal interests are forcing state courts to “discover” abortion rights in state constitutions. This is their backup plan–because absolute support for abortion over the past decades has eroded at the U.S. Supreme Court.

The horrific Roe ruling in 1973 that legalized the destruction of over 56 million innocent lives did not shut down dissent as abortion interests had hoped. Instead, not only has the population become more pro-life, states have gained more leverage in restricting abortion and have accrued legal footholds to overturn Roe.

In response, abortion strategy has been to get “mini” Roe rulings in the states by filing legal challenges to state pro-life laws that include claims that there is a state constitutional basis for abortion. It worked in Tennessee, where an overreach of their state supreme court declared a state constitutional basis for abortion did exist, blocking pro-life protections in that state for 15 years. It took tremendous efforts to eventually mount the successful ballot initiative that overruled that overreach.

DISMEMBERMENT BAN IS THREAT
In April, Kansas passed the Unborn Child Protection from Dismemberment Abortion Act, to ban the barbaric method of ripping apart living unborn children until they bleed to death. The Act poses a huge threat to abortion interests, both financially and legally.stop dismembering poster

Enter the national Center for Reproductive Rights (CRR), filing suit to preserve dismemberment abortions on behalf of Kansas City suburban abortionists Herb Hodes and Traci Nauser. The legal brief included claims about an as-yet-unacknowledged state right to abortion, as had other suits that Hodes & Nauser / CRR had filed against Kansas pro-life laws.

The lawsuit went to Shawnee County district Judge Larry Hendricks, who issued a temporary injunction on the Act June 25. Hendricks so thoroughly agreed with abortionists’ legal claims that he allowed the CRR to write his injunction ruling—a very rare occurrence.

That is how citizens of the very pro-life state of Kansas were informed that –unbeknownst to them, much less the authors of the state constitution– a legal right to abortion, separate and distinct from the one issued in Roe, has existed all along!

The office of Attorney General Derek Schmidt immediately filed to appeal Hendricks’ injunction with its bold pronouncements; the office has continually asserted that

the notion that our 1859 state constitution protects abortion “is a fantasy.”

Soon after, Schmidt’s office filed a motion to move the appeal straight to the state Supreme Court, due to the gravity of the effects on Kansas law that would follow under this constitutional “discovery.”

JUDGE SELECTION MATTERS
On Aug 30, without explanation, and by a 4-3 vote, the Kansas State Supreme Court rejected the A.G.’s request to intervene now. The Supreme Court should have complied with the request because it would inevitably be asked to rule on it from the loser of the appellate case. Thankfully, the appellate court has promised to act on an expedited timeline.

Ks Supreme Court

Kansas Supreme Court

Large political considerations are in play.

There has been growing unrest with anti-life justices on the state supreme court chosen under the least representative nomination method in the nation.

Kansans for Life has repeatedly called out that Court for their preferential treatment of abortion clinics in statewide legal cases going back to 1998.

In theory, citizens would show their opposition to judicial activism at the ballot box, where the judges of the supreme and appellate courts stand for “retention” every six years. Unfortunately, there has been a reluctance to vote them out and they are reliably retained by comfortable margins. Even the publicized death of a judge (whose name could not be removed from the printed ballot in time) did not keep voters from supporting his retention!

Kansans for Life has made court reform a top pro-life priority and pushed hard to improve the nomination process of the state’s highest courts. We have achieved a new selection method for the appellate court (by statute) but not yet for the state supreme court (which requires a legislative super majority and statewide ballot).

We educated the public about anti-life judges before the 2010 and 2014 elections; although none were defeated, a significant dent was made in their retention margins.

Five of the seven supreme court justices and six of the fourteen appellate judges in Kansas are up for retention in 2016. Those who are so extreme as to ratify the invention of a state right to abortion in our pre-Civil War Constitution –at a time when abortion was illegal in every state—may very well be a little nervous about losing their seats on the bench.

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KDHEContrary to an editorial blast today from the Lawrence Journal World, and an Associated Press story last Friday, Kansas is not suffering a permanent loss of federal assistance for reproductive health services. Open record information requested by Kansans for Life shows:

that the state’s Title X funding exceeds what it was during the last year when Planned Parenthood was getting part of it under court order.

The Title X award for Kansas in fiscal year 2016 is $2,472,000, just slightly higher than its award of $2,471,250 in 2014.

First, a little background. Title X is federally-dispersed money designed to assist low income-qualifying women for non-abortion reproductive health services, including contraceptives and health screenings. In Kansas, Title X is distributed by the Kansas Department of Health & Environment (KDHE).

Any licensed physician can do the elementary exams and blood draws covered under Title X; it is certainly not anything for which Planned Parenthood is uniquely capable.

It also is good stewardship for the state to allocate financial support for medical facilities that provide the poor with the full range of well-woman care (not just gynecological services, but nutritional, cardio, mental health, etc.)– as well as pediatric and geriatric care for both sexes.

KANSAS PRIORITIZES FULL SERVICE
Since 2007, the Kansas legislature had tried to insure that full-service health entities, especially public clinics, received Title X funding.  To accomplish that goal, the legislature annually passed a budget instruction– called a proviso– which prioritized Title X grants to full-service medical facilities.

However, pro-abortion governors Sebelius and Parkinson annually vetoed that proviso so that Planned Parenthood would not be disqualified from accessing the Title X funds.

The proviso for prioritizing Title X grants was finally signed into law under pro-life Gov. Sam Brownback in 2011. Planned Parenthood then challenged it in federal court.

While litigation ensued, Judge Thomas Marten ordered that Title X funding be guaranteed, not only to the plaintiff (Planned Parenthood clinics in Wichita and Hays) but also to an  independent Dodge City Family Planning (DCFP) clinic!

That judge-ordered temporary payment to three financially-failing businesses is what the AP story references as a “$370,000.00 loss.” And despite this judicial “monetary lifeline”  to all three limited-service businesses (in violation of the proviso), the small DCFP clinic closed and both Planned Parenthood clinics remained deeply in the red.

KANSAS WINS CONTROL
In March of 2014, the Kansas Title X prioritization proviso was upheld as valid by the Tenth Circuit Court of Appeals. Planned Parenthood dropped their legal challenge and accepted that both clinics were no longer eligible for Title X in Kansas.

Subsequently, the 2015 Kansas Title X federal award was reduced by $229,950, a one time adjustment after the two Planned Parenthood clinics were removed from the Kansas grantee eligibility.

The 2016 Title X funding federal award, in effect as of July 1, exceeds the 2014 award. In other words, the current award is just above our state’s pre-litigation amount.

Back to the AP story that has been generating headlines. The meme that Kansas is being denied Title X funding and that women are therefore underserved is unsubstantiated. The assessment relies on a self-serving claim by Planned Parenthood and a suggestion by the Sedgwick County Health Department Director that, “People have fewer places to go, and for those with limited means that may make utilizing those services even more difficult.”

Fewer places? Only 2 limited service medical clinics have closed: DCFP and the Hays Planned Parenthood clinic. KDHE funds 47 facilities under Title X.

Any speculation about how health care decisions are being made –without examining the effects of the initiation of Obamacare, the HHS contraceptive mandate, and other changes in Medicaid– are without solid factual basis at this point.

The bottom line is that tax funding belongs to true, full-service medical providers–not as a subsidy to a private chain of abortion providers.

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baby with dollarsThe periodic complaint/report on money spent to defend pro-life laws in Kansas was posted by the Associated Press Tuesday, part of the continuing mainstream media’s ‘framing’ that there are too many new pro-life laws with big legal price tags.

The first story was headed, “$1.2 million paid in attorney fees to defend anti-abortion laws.”

“To defend” seems like a hopeless challenge, doesn’t it? The truth is, the state has won all lawsuits concluded so far, as well as additional concessions in ongoing litigation!

Since not even one legal victory was mentioned in the story, I requested a correction. Kansans for Life asserted that the public has little interest in the names of the law firms, but rather deserves at least a hint of the results of their tax expenditures. A.P.’s updated story was reworded slightly to include that two laws had been “successfully defended.”

But beyond the frustrations of incomplete and inaccurate mainstream media reporting about abortion, it’s important to understand the context of those legal fees and why pro-lifers should not– and do not– fear passing sound laws.

Since his inauguration in January 2011, Kansas Gov. Sam Brownback has signed nine pro-life laws and four state budgets that include pro-life provisions. Subsequently, abortion interests have filed 10 legal challenges to three laws and one budget provision but Kansas is the big winner. Let’s examine the lawsuits in three segments.

KANSAS’ LEGAL WINS

1. Of the nearly $1.2 million total over four years’ time, $425,000 was expended opposing Planned Parenthood of Kansas-Mid Missouri. Kansas’ position prevailed in the Tenth Circuit Court of Appeals after some very bad examples of judicial activism in the lower court. This necessitated high-powered legal skills.

U.S. Rep. Tim Huelskamp

U.S. Rep. Tim Huelskamp

Upheld was the Huelskamp-Kinzer provision to the annual Kansas budget. Instead of going to Planned Parenthood, nearly $400,000 in annual federal Title X family planning is now designated as prioritized to full-service public clinics and hospitals that serve the patients from infants through the aged, instead of going to the special interest businesses.

On balance, the cost was a good investment, when considering the legal fee is nearly recouped in one year’s time, and then every year after when the Title X money is renewed.  Not to mention that tax money is dedicated to true health care, not abortion referrals.

KFL President Lance Kinzer

KFL President Lance Kinzer, former House Judiciary chair

2. In 2011, Kansas passed a law preventing private healthcare dollars from automatically paying for elective abortions. To secure that victory cost $149,000 in legal fees. The plaintiffs (one a Planned Parenthood employee and one a N.O.W. lobbyist) dropped their suit in May 2012, before the trial began.

It’s hard to estimate overall cost benefits in this one, but clearly the win goes to employers who don’t have to compromise their conscience by providing employee insurance that would be used for abortions, and lessening the amount available to cover bona fide employee medical needs. The victory also helps rebut activists’ demand that abortion be “mainstreamed” into medicine.

3. The remaining $620,000 of the $1.2 million in legal expenses has been used to deal with a variety of attempted injunctions and lawsuits against two laws (a clinic licensure law and an “omnibus” law covering a variety of restrictions).

During extensive and ongoing negotiations, Kansas’ extremely knowledgeable attorneys forced the abortion team to abandon some of their initial challenges, including opposition to informed consent materials about the humanity and pain-capability of the unborn.

These are important concessions that contribute to the overall national field of abortion litigation. Once a claim is rescinded in one court, it carries possible precedential weight in other courts.

In 2011, Kansas enacted a long-sought abortion clinic law initiating state licensure, inspection, and injury reporting. It also required abortionists to have local hospital privileges and banned “webcam” abortions.

Two Kansas City-area abortion clinics sued in federal court. When they lost their bid for a temporary injunction in federal court, they tried to charge Kansas $220,000 for 6 weeks’ legal work! (That makes the 3 year fee of $425,000 in item #1 look like a steal by comparison!) But Kansas’ defense lawyers prevailed and the abortion attorneys did not get that money.

Unfortunately, an activist state court did block the licensure law on behalf of the abortion father-daughter duo doing business as the Center for Women’s Health. After a long stall, the lawsuit against the licensure law is now moving on a fast track. The state of Kansas has asked the judge to rule out three claims of equal protection infringement, as questions of law.

In 2013, Kansas passed the Pro-Life Protections Act which removed tax advantages for abortionists, updated informed consent statutes and initiated a ban on sex-selection abortions. The same abortionist duo suing the licensure law also sued this law, and secured a temporary injunction on emergency and weblink provisions. Planned Parenthood also worked to get an injunction in federal court on the weblink requirement.

Kansas prevailed in getting both injunctions dissolved, forcing all clinics to post a link to state materials about gestation. Our talented defense lawyers won the first claim against the suit challenging the entire Pro-Life Protections law and further litigation is proceeding in district court.

Legal victories come at some cost, but what price is there for saving unborn children?

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new year baby2014 saw many pro-life victories for Kansas, the fruit of decades of efforts by pro-lifers to fight a culture of death through education, legislation and providing loving help to women feeling abandoned during pregnancy. Kansans for Life played a key role in these efforts, with exciting new developments in the works.

Pro-lifers can proudly claim credit for the fact that pro-life candidates won all of Kansas’ statewide offices, along with 94 of the 125 seats in the Kansas House of Representatives in the 2014 elections. Notably, pro-life stalwarts Governor Sam Brownback and U.S. Senator Pat Roberts won re-election over their radically pro-abortion challengers.

As officially reported by the Kansas Department of Health & Environment, the number of Kansas abortions dropped to 7,485 in 2013, from 7,598 in 2012 (2014 numbers aren’t available until March 2015). Many reasons can be attributed to the continued drop,  including the improved availability of informed consent information online and increased utilization of pregnancy care centers statewide.

  • No late-term abortions (after 22 weeks pregnancy) are allowed in Kansas due to a 2011 pro-life law acknowledging the unborn child’s ability to feel pain.
  • Abortions for sex-selection reasons are illegal.
  • Minors must secure two-parent consent to abortion.

Kansas is now down to three abortion clinics. The Kansas City Aid for Women abortion clinic closed abruptly at the end of July. It claimed the reason for the sudden closure was the retirement of its 73-year-old abortionist but this clinic was notorious for its string of abortionists with lengthy histories of malpractice cases and disciplinary actions issued by the state medical board. Not surprisingly, Aid for Women failed to attain a state-issued license in June 2011 after passage of the Kansas clinic licensure and regulation law– a pro-life law currently under legal challenge. The clinic admitted it would “have to gut the place” to be in compliance and thus Kansas women and unborn children are safer with the closing of this substandard clinic.

Kansas continues to successfully defend pro-life laws promoted by Kansans for Life.

A major pro-life legal win occurred in early May when Planned Parenthood of Kansas and Mid-Missouri dropped its 2011 lawsuit in federal court. They had sued against the Kansas budget provision that prioritized federal family planning funds be given to public full-service clinics rather than “specialty” clinics like Planned Parenthood. After the state’s budget authority was upheld, Planned Parenthood’s already-failing “abortion-feeder”clinic in Hays closed its doors – showing that this clinic relied on government money to survive.

Just weeks ago, Planned Parenthood also backed out of another lawsuit, in federal court, just days before it was headed to trial.  At issue was their past refusal to obey a provision of the 2013 Pro-Life Protections Act that required that every abortion clinic website have a live link on their home page that connected to the state’s Woman’s Right to Know website. The law intends that there be “one-click access” to sonogram images and information about the development of the unborn child to anyone remotely, or directly, considering abortion.

This year the Hodes-Nauser abortion clinic also lost its legal block (an injunction in state district court) of the same weblink provision. All three abortion clinics are now compliant with that live link. Thus, the fourth success for defense attorneys under Kansas Attorney General Derek Schmidt in defending sound pro-life laws promoted by Kansans for Life.

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plannedparenthood7As reported last Friday, Planned Parenthood of Kansas & Mid Missouri dropped the last of a three-part legal challenge to informed consent provisions of the 2013 Pro-life Protections Act. The Kansas Attorney General’s office issued a short statement today confirming the lawsuit had been dismissed.

In the “late Friday news dump”—the traditional method for circumventing news coverage of yet another failed abortion challenge—the first takeaway was that  there’d been a settlement.

After the news cycle was mostly finished on Friday, the Associated Press updated an earlier story to include that Elise Higgins, PPKMM spokeswoman, had said, “We voluntarily dismissed the case, and there was no settlement.” In addition, Laura McQuade, PPKMM president & CEO, stated, “We made the decision to focus our resources on expanding access to care for our patients in 2015.”

This famous “refocus our resources” line conveniently glosses over the truth that PPKMM was in the losing legal position and knew it.

Let’s remind ourselves of PPKMM’s typical bluster when they filed suit. Their June 20, 2013 press release huffed and puffed with outrage. The headline read, “Planned Parenthood Challenges Requirement that it Publicly Endorse State’s Anti-Abortion Ideology” and here were some talking points:

  • “Overreaching Law Undermines Doctor-Patient Relationship, Threatens Freedom of Speech for All Kansans”
  • “Governor [Sam] Brownback’s attempt to again inject politics into the relationship between a woman and her doctor will not stand.”
  • “vital state services are being slashed…while $759,000 [thus far] in taxpayer money [is spent to] defend anti-abortion bills”

Seems pretty extreme, if they could be believed. But what was the actual law they opposed?

Basically, it was an update to informational materials that Kansas enacted in 1997, following the U.S. Supreme Court’s 1992 Casey ruling recognizing the state’s right to provide “objective, nonjudgmental, and scientifically accurate” information to women considering an abortion. PPKMM’s suit was brought on three objections:

  1. the section of state pre-abortion materials that reads,”the abortion will terminate the life of a whole, separate, unique, living human being,”
  2. the section of state pre-abortion materials that includes a short paragraph about the unborn child’s pain-capability at 22 weeks gestation, and
  3. the requirement that a live link to pre-natal sonography (part of the state’s informed consent website) be positioned on the homepage of the clinic website.

The first two objections were quickly dropped within weeks, as they had been part of state materials in use for several years by all Kansas abortion clinics.

PPKMM’s resistance to placing a state weblink on their homepage, however, continued for well over another year, until the Friday before the big hearing was scheduled.

So why not battle it out in court? I think they knew they’d lose, and a court win [for the state] would have serious ramifications, i.e., it would propel similar pro-life protective laws in other states.

The fact is that case law upholds the right of government to regulate commerce. In the interest of consumer protection, the government already mandates warnings on toys, cigarette packs and takeoff instructions for airplane passengers. The list goes on. The required abortion clinic link for at issue is commercial regulation, not interference with free speech.

Planned Parenthood is a business. PPKMM admitted its primary business is abortion. The state of Kansas’ legal brief argued that the required link was “sensible commercial-disclosure requirements” aimed at “ensuring a decision that is mature and informed.”

Crucially, the state demolished PPKMM’s key defense — that they ALREADY had the link elsewhere on the website and that (horrors!) non-abortion clients would see the link if it were on the website home page. In response the state wrote:

“Links…that are planted deeper in the company’s website either will be missed or only will be seen by women once they have committed to going forward with the abortion procedure.
The homepage requirement aims to have the materials available while a woman is considering the question, “What should I do?”—not merely,“What do I need to bring to my abortion appointment?”

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A.G.Schmidt

A.G. Schmidt

Great news! Planned Parenthood of Kansas & Mid-Missouri has withdrawn its challenge in federal court to a Kansas law requiring that its website homepage contain a live link to the Kansas Health Department “informed consent” information.

This concession happened at the eleventh hour, as a hearing was scheduled Monday in the court of Judge Kathryn Vratil. PPKMM technically has until Monday to refile, which is extremely unlikely.

PPKMM had refused to comply with the weblink law even after all other Kansas abortion clinics had complied and despite the fact that a separate challenge from the Hodes & Nauser abortion clinic collapsed in state district court this spring.

This is the fourth win for the legal team under Kansas Attorney General Derek Schmidt in defending sound pro-life laws promoted by Kansans for Life.

Kansas has required abortion clinics to provide access to state materials on prenatal development, abortion information and assistance for unplanned pregnancies since 1997. The required weblink at issue reads:

The Kansas Department of Health and Environment maintains a website containing information about the development of the unborn child, as well as video of sonogram images of the unborn child at various stages of development, the Kansas Department of Health and Environment`s website can be accessed here[womansrighttoknow.org].

The state’s defense was rock solid against PPKMM’s argument that the weblink was:

  1. a free speech infringement of PPKMM’s preferred narrative about pregnancy, and
  2. it didn’t belong on the homepage where other non-abortion clients might see it.

The state rebutted that the required link was a form of consumer protection and that the state had a right to alert women before they committed to abortion. From the state’s most recent filing (emphasis added):

“In the 1980s and 1990s, public access to the Internet was extremely limited. Few businesses or public institutions had websites. …In the face of these changes in technology and access, and in order to more effectively reach women as they are contemplating the weighty decision of whether to undergo an abortion, the Kansas Legislature enacted a law in 2013…that when a company is in the business of performing abortions and that company maintains a website, it must include a link on its homepage.”

More on Monday!

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