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Archive for the ‘Kansas Courts’ Category

Bill carrier Rep. Todd

Bill carrier
Rep. Todd

Although this proposal already passed the Senate THREE YEARS AGO, the Kansas House today could not muster the 2/3 needed (84 votes) to put HCR 5005 on the November ballot. HCR 5005 would let the public vote to change the way state Supreme Court justices are selected.

The vote attained was 68 for, 54 against (with 3 reps absent). Those voting yes are the reps who treat the pro-life cause as a priority– not a preference, or an afterthought. Kansans for Life considered this the most important pro-life vote of this legislative session.

Here are the names of state reps who supported this measure to allow Kansans to vote for a change in judicial selection, with those in bold having spoken at the podium urging passage:

Anthimides, Barker, Barton, Billinger, Boldra, Bradford, Bruchman, Campbell, B. Carpenter, W. Carpenter, Claeys, Corbet, Davis, DeGraaf, Dove, Edmonds, Esau, Estes, Garber, Goico, Gonzalez, Grosserode, Hawkins, Hedke, Hemsley, Highland, Hildabrand, Hoffman, Houser, Huebert, Hutchins, Hutton, Johnson, D.Jones, K.Jones, Kahrs, Kelley, Kleeb, Lunn, Macheers, Mason, Mast, McPherson, Merrick, O’Brien, Osterman, Pauls, Peck, Powell, Rahjes, Read, Rhoades, Rubin, Ryckman,Jr., Ryckman,Sr., Scapa, Schwab, Schwartz, Smith, Suellentrop, Sutton, Thimesch, Todd (bill carrier), Vickrey, Waymaster, Weber, Whitmer, Williams.

Speaker Merrick

Speaker Merrick

State reps Henry, Kiegerl and Seiwert were absent. Contact information for all state reps is here. Read explanations of votes here (pgs. 1991-1994).

Please thank your state reps who voted yes. Special thanks to House Speaker, Ray Merrick (R-Stillwell), for allowing this vote and staging the informational caucuses this week.

The issue is not closed. Kansas has the least transparent and least democratic process used to arrive at nominees for the state Supreme Court (see chart). Behind closed doors a commission of nine –including five lawyers voted in by lawyers– puts forth three names and the governor must choose one or else the Supreme Court Chief Justice picks one.

Our State Supreme Court is more liberal than the U.S. Supreme Court, which — with an 8-1 vote– chastised our top Court two weeks ago for its handling of a death penalty sentencing issue.

Our second highest state tribunal, the Court of Appeals, recently allowed dismemberment abortions to continue by a split decision interpreting our 1859 state Constitution to embody a right to abortion stronger than that of Roe. That’s pathetic!

All our pro-life laws are in jeopardy when the courts continue to deliver rulings that substitute abortion advocacy for strict construction analysis. Stay tuned!

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AG Derek Schmidt

AG Schmidt

On Monday, Kansas Attorney General Derek Schmidt filed an appeal with the Kansas Supreme Court, asking for an expedited ruling on the question of whether the Kansas Constitution embodies a right to abortion.

A  7-7 ruling from the Court of Appeals on Jan. 22  maintained a district court’s temporary injunction against the Kansas Unborn Child Protection from Dismemberment Act.

However, Schmidt  asserts that properly understood,  the 7-7 tie is really a 7-6-1 ruling,  thus denying any state constitutional right to abortion.

The appeal (ironically titled a “prayer” in legal jargon) argues that the heart of the Court of Appeals ruling is whether the state Bill of Rights mimics the due process protection of the federal Fourteenth Amendment that is the basis for Roe v Wade.

  • Seven appellate judges (in the dissent, penned by Chief Judge Thomas Malone) held that the state Bill of Rights does not provide “Roe” protection,
  • six judges (in the ruling written by Judge Steve Leben) said the state Bill of Rights does provide “Roe” protection by extension, and
  • one concurrence (by Judge G. Gordon Atcheson) conceded that the state Bill of Rights’ Article 1 really doesn’t match up with “Roe” but no matter because abortion is protected in a stronger way.

    Judge Atcheson

    Judge Atcheson

Judge Atcheson wrote, “Article 1 provides a constitutional protection [for abortion] that has no direct analog in the federal Constitution… [it] effectuates self-determination consistent with an evolving and ever more enlightened understanding of humanity across both race and gender.”

He also wrote, “a woman’s right of self-determination, as established in Article 1, takes precedence [over a fetus] incapable of free-will or self-determination,” and “I cannot infer a particular legislative purpose or governmental interest advanced in Senate Bill 95 [the dismemberment ban].”

Truly the abortion protection that Judge Atcheson wishes to be found in Kansas’ 1859 Bill of Rights is broader than Roe and –if agreed to by the Kansas Supreme Court—poses a threat to all existent pro-life laws in this state.

On the other hand, the six appellate judges who want a state right to be an extension of Roe implicitly would examine pro-life laws under the “undue burden” standard, which is more workable than if abortion is declared fundamentally protected and laws have to pass “strict scrutiny.”

Because the appellate court really left all Kansas courts adrift in confusion, Schmidt urges the Kansas Supreme Court to take up the issue. Until it is resolved, it will continue to be raised in existent and future lawsuits, he argued.

At issue is a compelling constitutional question of “first impression.” That is something that ultimately only the Kansas Supreme Court can resolve.

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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 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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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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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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Solicitor General Steve McAlister

Solicitor General Steve McAlister

While Wednesday’s full court hearing of the Kansas Court of Appeals was characterized by one of the 14 judges as “merely a whistle stop on the destination to justice,” it would be a mistake to underestimate the significance of the 90-minute hearing.

At issue is Attorney General Derek Schmidt’s appeal of a temporary injunction granted June 25 by a state court which blocked Senate Bill 95, the “Unborn Child Protection from Dismemberment Abortion Act,” from going into effect.

The lawsuit was filed by father-daughter abortionists at the Center for Women’s Health, Herb Hodes and Traci Nauser, who attended the hearing along with a raft of attorneys, reporters, representatives of the other two Kansas abortion businesses, and members of Kansans for Life. Court staff had added extra chairs and a “cheat” sheet with the judges’ photos and names. No electronic devices are allowed, so notes had to be taken with old fashioned paper and pen.

This hearing was focused on the process of awarding an injunction, and not the content of the law enjoined. So it was not too surprising that not one word was uttered describing the horrific abortion dismemberment method that uses sharp metal clamps and scissors to tear apart, piece by piece, a well-formed, living unborn child.

Rather, the focus of the oral argument (45 minutes each, pro and con) was on pretty heavy-duty legal language–for example,  how federal “substantive due process” and “equal protection” (upon which Roe is based) are interpreted in state constitutions.

In simpler terms, will this court uphold the injunction by Shawnee County Judge Larry Hendricks that blocked the dismemberment ban from going into effect?

The Attorney General’s appeal alleges the injunction cannot hold because it is based on

  • a hitherto-undeclared “right to abortion” under the Bill of Rights section of the Kansas Constitution; and
  • misinterpretations of federal abortion decisions.

The pro-life side was represented by State Solicitor General, Steve McAllister– an experienced litigator, constitutional scholar, past law school dean, and former clerk to two U.S. Supreme Court justices.

The attorney for the plaintiffs seeking to keep dismemberment abortions legal was Janet Crepps, from the New-York-based Center for Reproductive Rights. Crepps is an experienced pro-abortion litigator, but she struggled to answer judges’ questions regarding Kansas law.

KANSAS CONSTITUTION PROTECTS UNBORN
The arguments Wednesday dealt nearly exclusively with the Kansas Constitution, and not the federal abortion rulings related to partial-birth and dismemberment abortion methods. McAllister strongly asserted that this court’s task was to assess prior Kansas rulings and not try to guess which way the Kansas Supreme Court might rule on this case in the future –as it is expected they surely will do at some point.

He presented strong evidence that the state framers particularly sought to protect natural rights, not un-enumerated, newly-evolved “rights.”

This stood in opposition to Judge Hendricks’ ruling which asserts a state abortion right that is “fundamental,” broader than that of Roe, and which bars any ban on the dismemberment method.

McAllister noted that abortion was illegal at the 1859 adoption of the state constitution, so how can any authentic reading of it re-interpret abortion to be protected? Moreover, abortion was criminally prosecuted in Kansas up until Roe.  Kansas case law, he argued, has interpreted the state constitution as specifically protective of the unborn child.

As a comparison, McAllister pointed out that doctors had filed—and lost—a lawsuit to find a “right” to practice medicine within the Kansas Constitution, so it seems absurd for abortionists to assert there’s a “right” to abortion found there!

Abortion attorney Janet Crepps

Abortion attorney Janet Crepps

WEAK LEGAL CLAIMS
Several judges pushed Crepps to defend why her clients were seeking to have Kansas courts secure a state right to abortion. Since the intended purpose of a temporary injunction is to prevent “harms” during litigation, they asked how was she really helping her clients by not using the federal court system where Roe already supports abortion claims?

Crepps’ reply was that every citizen has the right to ask the courts to find such individual protection under their state constitution. She noted that interracial marriage and gay rights were not originally acknowledged as rights.

At one point, Crepps was asked to elucidate specifically what was the “undue burden” involved from the Act: was it safety? cost? geographic access?

Crepps responded that the banned method took only one day to complete instead of three and that the Act left only “unreasonable alternatives” for women seeking second-trimester abortions. Throughout the hearing she repeatedly described one alternative method as requiring the insertion of a “spinal, 18-gauge needle into the stomach or vagina” to “cause demise.”

She didn’t say “fetal demise.” Just demise. Did the judges notice she left out the unborn child?

The chief Judge of the appellate court, Thomas Malone, promised a quick ruling but was unable to say when that would occur.

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KS appeals court

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
here)

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.

APPEAL COURT CONSIDERATIONS
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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