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Kansas Court of Appeals to probe dismemberment ban

Over the Thanksgiving holiday, all 14 judges of Kansas’ state Court of Appeals will begin analyzing all legal briefs, pro and con, for an expedited hearing on the grisly topic of dismemberment abortions.

That includes a “friend of the court” brief submitted by Kansans for Life in support of Kansas Attorney General Derek Schmidt. Schmidt is appealing a lower court decision that blocked implementation of the state’s first-in-the-nation Unborn Child Protection from Dismemberment Abortion Act.

Oral arguments are set for December 9.

Last July, Shawnee County District Court Judge Larry Hendricks issued an injunction, blocking Senate Bill 95 from going in effect. (read more

The Act bans a barbaric abortion method that tears apart living, well-formed unborn babies while in their mother’s wombs.

A.G. Schmidt

A.G. Schmidt

The preliminary injunction was obtained by the New York-based Center for Reproductive Rights on behalf of Kansas’ father-daughter abortionists at the Center for Women’s Health in suburban Kansas City.

But the abortionists’ lawsuit was not filed in the federal court route that ends with the U.S. Supreme Court. The Kansas Attorney General’s legal team points out clearly in its filings that the abortionists logically should have taken that path, but instead are pursuing the state court path that ends with the state Supreme Court.

Why? Two reasons. Abortion attorneys:

  1.  recognize this Act could well be upheld for the nation, and
  2.  want to, instead, carve out a state right to abortion as interpreted into the Bills of Rights section of the Kansas Constitution.

The explanation for #1 is that dismemberment method abortions were examined at some length by the U.S. Supreme Court during their deliberations on partial-birth abortions. The Court assessed both methods as “brutal.”

In its 2007 Gonzales decision, the High Court upheld a prohibition on the gruesome partial-birth method, as furthering “legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.”

The explanation for #2 is that the Kansas state Supreme Court has shown a decidedly pro-abortion bias over the past two decades. Abortion attorneys are attempting to take advantage of that, hoping that the Kansas Supreme Court will “discover” a right-to-abortion in the state Constitution.

Everyone knows that is what is happening. The Nov. 15 “rebuttal” filing from the Kansas Attorney General observed that,

“[this suit invites] Kansas courts to take on a long rejected activist role: to change the people’s Constitution of the past 150 years in order to recognize “rights” that Plaintiffs may deem politically or morally expedient, but which an overwhelming majority of Kansans do not support.

The Kansas Court of Appeals has been asked by the Kansas Attorney General to rule on whether the lower court– that opined dismemberment abortions cannot be banned –erred in two areas:

  • misstating the relevant U.S. Supreme Court findings, and
  • claiming that there exists a state right to abortion.

The abortion attorneys have clearly misstated the U.S. Supreme Court—and that’s why they don’t want to end up there.

DIsmembering a living unborn child

Dismembering a living unborn child

As to the claim that Kansas has a state abortion right, attorneys for the Center for Women’s Health argue that permitting abortionists to dismember living babies till they bleed to death is part of a woman’s liberty right, and a development of Kansas’ “pro-woman” history. They cite that, from its inception, Kansas gave women the right to hold property and vote in school elections.

How absurd is that stretch?!  Unless a baby is merely property that can be dismembered/shredded in the manner that is most convenient for abortionists. However, the Supreme Court’s most recent abortion ruling of 2007 doesn’t invest abortionists with veto power over the state legislature:

“Physicians are not entitled to ignore regulations that direct them to use reasonable alternative procedures. The law need not give abortion doctors unfettered choice in the course of their medical practice, nor should it elevate their status above other physicians in the medical community.[Gonzales v. Carhart, p.163]

“The medical profession, furthermore, may find different and less shocking methods to abort the fetus in the second trimester, thereby accommodating legislative demand.[p.160]

There is more yet to be aired on what attorneys are claiming in “friend of the court” briefs now being digested by the Kansas appellate court

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stop dismembering posterKansans for Life today submitted an amicus (“friend of the court”) brief, supporting Kansas Attorney General Derek Schmidt’s position in the matter of the ground-breaking Unborn Child Protection from Dismemberment Abortion Act.

The A.G. is appealing a lower court block on the law with a hearing scheduled Dec. 9 in front of the full, fourteen-member state Court of Appeals. The fact that this appeal is being expedited to the full court, instead of a 3-member panel, is extremely unusual and shows the high stakes involved.

The Unborn Child Protection from Dismemberment Abortion Act was enacted in Kansas this April (followed within days by Oklahoma). The Act is model legislation developed by the National Right to Life Committee that is designed to pass U. S. Supreme Court scrutiny and would prohibit the brutal shredding of unborn children while still alive inside their mothers.

According to state reporting data, Kansas has seen a rise in such horrific abortions, from 584 in 2013 to 637 in 2014. All three abortion businesses in Kansas offer such procedures, with one admitting on national television they cost around $2,000.00 apiece.

Abortions by dismemberment are done mainly after the first trimester, when the unborn baby is too large to pass through the suction tubing of the abortion machine. In a dismemberment abortion, the abortionist continually reaches into the mother’s womb with a variety of sharp-edged metal clamps and tools, yanking off parts of the child and pulling them out onto a tray.

Infamous abortionist LeRoy Carhart (who still holds a medical license in Kansas) has described this procedure in court as “dismembering” and recounts how he uses ultrasound guidance so he knows that these unborn victims are still alive, with hearts beating, as the procedure unfolds.

medical arm with abortion toolAlthough pro-abortionists (and nearly every media outlet) refer to these abortions as D&E abortions, D&E is actually a broader term, encompassing the removal of baby body parts—whether parts are torn off of still-alive unborn children or taken off unborn children already dead through the intentional administration of a feticide or by the snipping of the umbilical cord. The Kansas and Oklahoma Acts only bar dismemberment abortions performed on a still-living unborn child.

Abortion attorneys are claiming that women’s health demands this barbaric procedure. This was also their claim when it came to partial-birth abortions, which the U. S. Supreme Court rejected in their 2007 Gonzales ruling. In that decision, the Court upheld that the federal ban on partial-birth abortions — forbidding an inhumane abortion procedure in order to show respect for the developing unborn child and to regulate medicine — was a proper exercise of legislatures.

The impetus for a ban on dismemberment abortion was the actual written comments by the Justices in the Gonzales decision, and in an earlier partial-birth ruling, Stenberg, that acknowledged the horrific abortion procedures.


Justice Ginsburg

Justice John Paul Stevens, an abortion supporter, in comparing partial-birth abortion to dismemberment abortion, said, “that the State furthers any legitimate interest by banning one but not the other, is simply irrational.” [Stenberg v. Carhart, 530 U.S. 914, 946-947]

Justice Ruth Bader-Ginsburg, an abortion supporter, said both methods “could equally be characterized as ‘brutal,’… involving as it does ‘tear[ing] [a fetus] apart’ and ‘rip[ping] off’ its limbs.” [Gonzales v. Carhart, 550 U.S. 124, 181, 182]

The Court essentially encouraged states to bar abortion methods that, ”might cause the medical profession or society as a whole to become insensitive, even disdainful, to life…” Stenberg v. Carhart, 530 U.S. 914, 961

Barbarism is exactly what the Kansas and Oklahoma legislature intended to stop when enacting the Unborn Child Protection from Dismemberment Abortion Act, yet both states have been blocked by court injunctions from allowing this law to go into effect.

Shawnee District Court Judge Larry Hendricks has apparently not read the relevant U.S. Supreme Court rulings. His decision to issue an injunction in June (read more here) blocking the Act declared that it:

  • would be an unacceptable limitation (“undue burden”) on the so-called right to abortion created by Roe in 1973 (as the abortion attorneys interpret it) and
  • violates an even broader “right” to abortion that the judge says exists in our 1859-adopted Kansas Constitution.
Judge Hendricks

Judge Hendricks

The argument that Kansas has any right to abortion enshrined in our state Constitution has repeatedly been rebutted and called “a fantasy” in filings from the Attorney General.

Furthermore, the U.S. Supreme Court said in Gonzales that abortionists do not have any right to demand certain procedures: Physicians are not entitled to ignore regulations that direct them to use reasonable alternative procedures. The law need not give abortion doctors unfettered choice in the course of their medical practice.” [Gonzales v. Carhart, 550 U.S. 124, 163]

The abortionists’ argument that the Dismemberment Abortion ban restricts a “common” method is actually a plea that they be allowed to keep methods that are more expeditious and profitable for them.

Kansans for Life’s amicus brief amplifies why this Act conforms to the U.S. Supreme Court’s position that some abortion methods are unacceptable and “will further coarsen society to the humanity of not only newborns, but all vulnerable and innocent human life, making it increasingly difficult to protect such life.’ “[Gonzales v. Carhart, 550 U.S. 124, 156-157]

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Judge Franklin Theis

Judge Franklin Theis

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.

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.

CWH, the father-daughter duo

CWH, the father-daughter duo of Herb Hodes & Traci Nauser

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.

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.

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Shawnee District court judge Larry Hendrick

Shawnee  County District Court Judge Larry Hendricks

A state district court this morning in Topeka issued an injunction that bars the first-in-nation Kansas Unborn Child Protection from Dismemberment Abortion Act [Senate Bill 95] from going into effect July 1.

Judge Larry Hendricks granted the block, which was filed and argued by the national Center for Reproductive Rights, on behalf of the Overland Park Center for Women’s Health –that has sued two other Kansas pro-life laws, still in litigation.

The Kansas Attorney General’s office had defended SB 95 as well-founded on U.S. Supreme Court language that upholds the states’ right to show respect for life inside the mother and to insure the integrity of the medical profession which it regulates.

As defined in SB 95, a dismemberment abortion is performed when sharp metal tools are used to grab and yank off limbs of a living, well-formed, unborn child inside the mother’s womb. Unfortunately, today’s hearing completely omitted the procedure’s description, and focused on dry legal points as if debating a parking lot boundary line.

Kansans for Life executive director, Mary Kay Culp, commented, “Kansans were outraged to learn of this barbaric method of shredding apart innocent unborn children and they will hold the judiciary responsible for rejecting the validity of this duly-passed law.”

In this morning’s hearing, Judge Hendricks totally echoed the abortion industry claim that the federal “right” to an abortion is fully upheld in the Kansas constitution. Hendricks ignores the key 2007 Gonzales ruling, in which the Court said:

“Casey 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.

SB 95 allowed exceptions for an abortion needed to prevent the death or physical damage to the mother. The federal Partial-birth abortion ban allows only an exception to prevent death of the mother. The U.S. Supreme Court upheld that law in 2007.

Kansas health department statistics had shown a recent 9% rise in use of this inhuman dismemberment method, which was used to tear apart 637 living unborn children in 2014.

Kansans for Life believes that 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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stop dismembering posterJuly 1 is the day that SB 95, the historic Unborn Child Protection from Dismemberment Abortion Act, is supposed to go into effect in Kansas.

But, as always is the case with commonsense pro-life legislation, abortionists seek to win via the courts what they lost in the legislature.

The Overland Park Center for Women’s Health (CWH), run by the father-daughter abortion duo, Herb Hodes and Traci Nauser, filed for an injunction June 1. A hearing on the request is scheduled for Thursday morning in the court of Shawnee County district judge Larry Hendricks.

SB 95 would end a gruesome, barbaric, limb-ripping method of abortion performed on tiny, unborn living girls and boys. State health department statistics for Kansas abortions in 2014 show that this inhumane abortion method was employed 637 times, an increase of 9% from 2013.

Dismemberment abortions are every bit as brutal as the partial-birth abortion method, which is now illegal in the United States.

Indeed, the shocking act of a licensed physician dismembering a child repeatedly with metal tools while inside the mother’s womb is so repulsive that the abortion attorneys filing the CWH legal challenge do not dare even mention the word dismemberment in their pleadings, much less try to justify it.

Instead, abortion filings are claiming this method is too necessary and “expeditious” to prohibit, and that the public and the abortionists will suffer irreparable harm if they are unable to use it. The key CWF expert is a New York abortionist and teaching fellow who says that, without access to dismemberment, women will be subject to “painful, invasive medical procedures.”

Of course, there already is someone suffering from a “painful, invasive medical procedure”—the unborn child.

The abortionists’ attorneys offer the novel legal claim that preventing use of the dismemberment method would “violate the woman’s bodily integrity” by denying her the right to choose what abortion method she and her abortionist prefer.

What about the bodily integrity of the unborn son or daughter torn to pieces while the mother is under anesthesia?

The Unborn Child Protection from Dismemberment Abortion Act is model legislation drafted by the National Right to Life Committee. The law has also been passed in Oklahoma.

The state of Kansas’ legal filing strongly defends the dismemberment ban and points to the reasoning in the Supreme Court’s 2007 Gonzales v. Carhart decision which upheld the ban on partial-birth abortions:

  1. “The government may use its voice and its regulatory authority to show its profound respect for the life within the woman. ”
  2. “Under our precedents it is clear the State has a significant role to play in regulating the medical profession.”

Abortion attorneys try to spin Gonzales and the 1992 Planned Parenthood v Casey abortion ruling to their own ends–in effect, that Kansas dare not foreclose on a favored method of abortion.

But among other counter-arguments, the Kansas defense team notes, “[T]he U.S. Supreme Court explained that …‘Casey 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.’ ”

The state asserts that attorneys for Hodes and Nauser have not demonstrated, “that the alleged irreparable injury outweighs the harm to the State’s well-established interest in promoting human dignity and barring a procedure deemed inhumane.”

The state of Kansas will argue forcefully that no injunction against the dismemberment ban is deserved. We will soon see what the court decides.

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A.G. Derek Schmidt

A.G. Derek Schmidt

As expected, opponents of Kansas’ historic new ban on dismemberment abortion are seeking an injunction in the Shawnee County District Court of Judge Larry Hendricks to prevent the measure from going into effect July 1st.

The Unborn Child Protection from Dismemberment Abortion Act, signed as SB 95 on April 7, defines Dismemberment abortion as

“knowingly dismembering a living unborn child and extracting such unborn child one piece at a time from the uterus through the use of clamps, grasping forceps, tongs, scissors or similar instruments that, through the convergence of two rigid levers, slice, crush or grasp a portion of the unborn child’s body in order to cut or rip it off.

This is a law with overwhelming public support in our state. Kansas Attorney General Derek Schmidt issued a short comment: “As is our duty, our office will provide for a vigorous defense of the state’s duly enacted law.”  Schmidt allocated funds for this expected challenge.

Monday’s challenge by the Overland Park Center for Women’s Health (CWH)– as well as its earlier two suits in 2011 and 2013– was ostensibly filed to block abortion restrictions from going into effect. However, the even deadlier legal goal is to get a state Supreme Court ruling upholding CWH assertions

that the Kansas state Constitution actually contains a fundamental right to abortion! This kind of ruling would devastatingly undo Kansas’ past pro-life laws.

The Attorney General’s legal team, however, has already responded in past filings that any such claim of an abortion right existing in our pre-Civil War state Constitution is “a fantasy.”

The CWH plaintiffs are the father-daughter abortion duo, Herb Hodes and Traci Nauser. In his submission to the legislature during consideration of SB 95, Hodes wrote that the dismemberment method is “the safest and most expeditious” and, without it, “the sanctity of the doctor-patient relationship” would “be jeopardized.”

They also insist that a ban on an abortion method that brutally and painfully dismembers a living unborn child somehow undermines “women’s autonomy” and “bodily integrity.”

Consider how bizarre an inversion that assertion is! The barbaric ripping apart of a living unborn baby is being demanded in the name of a so-called “sacred relationship” between an abortionist and his client seeking an “expeditious” termination.

There are some very ugly truths revealed in the abortionists’ supporting testimony that will be examined in future posts. Here are a few of the reasons given in Monday’s filings by those battling for the “right” to keep performing inhumane dismemberment abortions:

  • alternate methods using feticide injections require a lot of medical skill and are too “upsetting” for many women;
  • labor-induction methods are more time-consuming and unable to be handled in free-standing clinics.

Which brings us to the matter of the necessary cost of defending our laws. Pro-abortionists inevitably bring this up as if it was the legislature’s fault that they file suit. The media helps them complain by only reporting abortion-related legal expenses without ever inquiring about the costs for other laws being defended by the Attorney General. Kansans for Life asked for a breakout.

The Attorney General’s office responded that their outside legal expenses for all cases totaled $8.14 million from 2011 through 2014. The highest costs went to school funding battles at $1.48 million (18% of total), followed by water rights at $1.41 million (17%), and tobacco settlements at $1.21 million (15%). In fourth place is the defense of pro-life laws at $1.10 million, only 13% of the 4-year total. A variety of other cases make up the balance.

And it is important to remember that the state of Kansas to date has won all completed lawsuits brought by abortion interests.

Kansas will continue to protect the unborn, no matter the price.

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"Webcam" delivers abortion pills

Kansas doesn’t want abortion pills dispensed by “webcam”

The Kansas House Saturday afternoon passed a modest tweak to an abortion law insuring that abortion pills will not be accessed by “webcam” without the onsite interaction of a Kansas-licensed physician.

Senate Sub for HB 2228 passed the House with only 2 dissents, mirroring the Senate’s 39-0 support for the bill last week.

The measure is a technical clarification, affirming that medical emergencies and hospital abortions are exceptions to the abortion pill “in-person-physician” mandate.

The anti-webcam language was enacted in 2011 as part of a comprehensive Abortion Clinic Licensure Act. All of the Act has been blocked due to an injunction obtained by the Overland Park abortion business, Center for Women’s Health (CWH).

A non-surgical abortion actually involves two different drugs: mifepristone given initially, followed within 2 days by misoprostol. Abortions “by pills” comprised 46% of total Kansas abortions in 2014, and pose serious risks, including death. (see NRLC report here)

The “in-person-physician” mandate was driven by Iowa’s experience in which multiple Planned Parenthood clinics dispensed abortion pills without any in-person-physician exam. Instead, women had only a remote “contact” with a distant physician via computer screen.

19 states have enacted anti-webcam laws; 15 are in effect, two go into effect in July and Iowa and Kansas laws are under injunction.

Today’s bill passed 109-2 with one “pass” and 13 members absent. It is expected to be signed without delay by Gov. Brownback and will go into effect upon publication. This way, the Attorney General’s office can ask the district Court to allow the original 2011 anti-webcam provision to go into effect while the snail-paced lawsuit proceeds.

Last year, the Kansas legislature similarly passed clarifications to the abortion medical emergency definition and the mandated informed consent weblink. The desired result was achieved when distinct legal challenges in separate courts from CWH and Planned Parenthood were dropped due to the clarifications.

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