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Archive for the ‘Lawsuit v Kansas’ Category

Justice Stegall

“Kansas’ highest court appeared receptive Thursday to declaring for the first time that the state constitution recognizes abortion rights,”  wrote the Associated Press’s John Hanna Thursday.

Indeed, the questions from the majority of Kansas Supreme Court Justices hearing oral arguments in the most important pro-life case in Kansas history, seemed focused on how—not whether– an abortion right will be framed to support a lower court injunction on dismemberment abortions.

Only one Justice, Caleb Stegall, repeatedly probed the problems of the Court “discovering” new abortion protection that, in effect, gives constitutional rights to some groups and not others (the unborn).

SB 95, which Kansas enacted in 2015, is titled the Unborn Child Protection from Dismemberment Abortion Act. The measure prohibits abortions in which the fully-formed unborn child is torn apart with sharp metal tools, bit by bit, while still alive, inside her mother.

Unfortunately, the justices, the media, and those of us in the audience, never heard any description of an actual dismemberment abortion yesterday.

Instead, according to Janet Crepps, an abortion attorney for the New York-based Center for Reproductive Rights (CRR), women are the victims under SB 95. She told the justices that second-trimester non-dismemberment abortion methods were “experimental” and “painful” for women and an affront to their “privacy, autonomy, dignity and bodily integrity.”

Abortion atty,
Janet Crepps

And she said that with a straight face.

Solicitor General Stephen McAllister argued that abortion supporters want the Kansas Supreme Court to engage in a brand of judicial activism that ignored the text of the state’s constitution and the history of pro-life laws enacted in Kansas.

“If the people of Kansas want to create a constitutional right to abortion, they have a ready mechanism for doing so — the constitutional amendment process. Kansans have not been shy about utilizing it,” he explained.

CRR’s Crepps urged the justices to declare a “fundamental” right to abortion even broader than that created by Roe v. Wade, based on a “liberty” interest which has “evolved” during the nation’s “march to progress.”

She clearly aimed to undermine the “compelling” state interests that justify abortion restrictions and that are currently honored by the U.S. Supreme Court. These interests, cited in the 2007 Gonzales ruling upholding a ban on partial-birth abortions, include:

  1. That the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession.
  2. That the government may use its voice and its regulatory authority to show its profound respect for the life within the woman.

When questioned when the unborn merited constitutional rights, Crepps replied that those rights “attached” at birth.

At birth. That did not make its way into the Associated Press story, nor any other story in the Kansas media.

Abortion up until birth is an extreme position that very, very few Americans agree with.

A long line of discussion ensued on how that position can be reconciled with Kansas laws, including the fetal homicide statute [Alexa’s Law] allowing for prosecution of crimes resulting in the murder of unborn babies. Justice Stegall asked Crepps:

“How can we convict somebody of murder of an entity that has no inalienable rights, has no right to life? How can that be consistent? How can the state do that?”

Two of the justices seemed more concerned that without a state abortion “right,” women “would be forced to give birth” and pregnant women could “lose their lives.”

Lost in the discussion is the fact that abortion regulations in Kansas have always allowed “life of the mother” exceptions.

rally dismemberment sign

2015 Rally for Life urges ban on dismemberment abortions

The painful and barbaric nature of dismemberment abortion –violence that, under Kansas law, is not tolerated for pets and livestock in Kansas—was ignored.

Mc Allister warned the justices that the case before them does not require the drastic judicial activism that Crepps promotes, and that was exhibited in Roe v Wade, causing “more than four decades of havoc.

He closed his remarks with a quote from Justice Bryon White’s dissent in Roe: “As an exercise of raw judicial power, the Court perhaps has authority to do what it does today, but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.”

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Kansas Supreme Court

The Kansas Supreme Court will hear oral arguments Thursday morning in the most important pro-life issue ever to be decided in state history: whether a previously unknown  “fundamental” right to abortion is part of the 1859 state Constitution’s Bill of Rights.

This momentous case began in June of 2015, when abortion interests sued SB 95, the newly-enacted Unborn Child Protection from Dismemberment Abortion Act. This first-in-the nation ban—which other states have enacted and others are now seeking to pass—would prohibit the barbaric method of tearing apart fully-formed unborn children, piece by piece, while they are still alive inside their mother.

Shawnee District Court Judge Larry Hendricks issued a temporary injunction against the measure. He concluded that abortion interests would eventually prevail when a state right to abortion was officially acknowledged. A split decision of the Kansas Court of Appeals on the matter last January left Hendricks’ injunction in place.

Solicitor General Stephen McAllister will argue the case for the KS A.G.

The legal team for the Kansas Attorney General, Derek Schmidt, has rigorously defended SB 95 as an authentic exercise of the state’s regulatory powers. They have repeatedly argued that any idea that Kansas actually has enshrined a right to abortion “is a fantasy.”

KFL FRIEND OF THE COURT BRIEF
As it had for the first appeal of SB 95, Kansans for Life filed an “amicus curiae” (friend of the court) brief, buttressing the arguments of the Attorney General.

The KFL amicus asks that the Kansas Supreme Court reverse the injunction issued by Judge Hendricks and “declare that no right to abortion can be implied or created based on the text, history, and jurisprudence of this state.” The amicus points out:

  1. The Hendricks’ ruling is in direct conflict with the primacy of place given to the right to life in the Kansas Bill of Rights, which declares, “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”
  2. The litigation against SB 95 thus far has treated the case as if no application of the ban is constitutional (called a facial challenge) when in fact, the abortionists challenging the ban have presented documentation that undermines that claim.
  3. The same logic that upheld the federal partial-birth abortion ban (in the 2007  U.S. Supreme Court’s Gonzales ruling) will also uphold a ban on the equally horrific shredding of still-alive unborn children.
  4. Senate Bill 95 is based on the simple proposition that causing gratuitous pain to other human beings is fundamentally wrong— the foundation of the Kansas statutory prohibition of torture and enhanced penalties for crimes involving torture.

In its conclusion, the KFL brief advises the Kansas Supreme Court that:

“There simply is no basis in the Kansas Bill of Rights for a ruling that requires the state to tolerate live dismemberment abortion – a ruling that affords unborn children less protection than afforded by state statute to the livestock in this state.”

Many pro-lifers are praying that the justices will be positively affected in this hearing tomorrow. The hearing will be live streamed here.

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stop dismembering posterThe Kansas Supreme Court announced Wednesday that they have scheduled oral arguments for 9a.m. March 16, on the matter of a blocked ban on dismemberment abortions.

It’s been 11 months since the Kansas Supreme Court was asked to review two lower court decisions upholding a temporary injunction against the first-in-the nation Unborn Child Protection from Dismemberment Abortion Act, passed in April 2015.

The first state court decision was made by Shawnee District Judge Larry Hendricks, ruling in favor of a father /daughter abortion duo, Herb Hodes & Traci Nauser, who had already sued two other state pro-life laws. The second ruling was a split decision from the state Court of Appeals, which settled nothing. While this matter proceeds, all three Hodes/Nauser lawsuits are on hold.

The case before the Kansas Supreme Court is more than just a ruling on one method of abortion because the

legal attack needs the Court to declare a state right to abortion, one more broad and extreme that that created by Roe v Wade.

As described by one appellate court justice, G. Gordon Atcheson, the newly asserted state abortion right would undermine the Kansas pro-life protective laws currently allowable under Roe v Wade.

Kansans for Life agrees with State Attorney General, Derek Schmidt, that there is no such thing as a state constitutional right to abortion.

When adopted in 1859, the Kansas Constitution did not state, nor intend to create, a ‘right’ to abortion. In fact, in that same year, just before the adoption of the Constitution, the Kansas state legislature passed a law making it a crime to kill an unborn child by abortion. This law was in effect for over 100 years.

The Kansas Attorney General urged last February that the injunction be dropped, but the Court bided its time, during which, five justices up for retention election in November narrowly retained their seats. Only one justice had the support of pro-lifers.

The Lawrence Journal World described the issue of the March hearing as a legal challenge over a “law banning a certain type of abortion procedure commonly used in second-trimester abortions, a procedure that abortion opponents call ‘dismemberment abortions.’”

The AP Wire service was more clear when reporting that the case revolves around “a 2015 law that bans doctors from using forceps, tongs or other medical implements to dismember a fetus in the womb to complete an abortion.”

The legal matter is not whether the state legislature’s dismemberment ban was justified, but on the argument that abortion advocates will likely win at trial, when they can assert  a Court ratified state right to abortion as fundamental to women’s liberty interest.

Planned Parenthood had this pat comment yesterday, “We’re hopeful the court will see this for what it is, which is politicians attempting to practice medicine and endangering women in the process.”

Pro-lifers are hoping the Court sees what is always very much overlooked in these reports — the innocent, fully-formed little human beings facing a torturous and unjustifiable death.

What are  the “liberty interests” of those little boys and girls?

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comp health PP (2)Kansas cannot cut off Medicaid funding for two Planned Parenthood affiliates reports the Associated Press this evening.

“The Governor will continue the fight to make Kansas a pro-life state,” said Eileen Hawley, spokeswoman for Gov. Brownback,  “We will review today’s preliminary ruling and move forward with the litigation.”

U.S. District Judge Julie Robinson in Kansas City, Kansas, issued the temporary ruling late Tuesday which prevents the Kansas Department of Health and Environment (KDHE) from cutting off funding Thursday for Planned Parenthood of Kansas and Mid-Missouri and the organization’s St. Louis regional affiliate.

Mary Kay Culp, KFL executive director, commented,

“We oppose any public money that helps the abortion giant Planned Parenthood stay open. Planned Parenthood is not the trusted health-care provider they like to call themselves –everything they do is poisoned by their abortion business and advocacy .”

Planned Parenthood in Overland Park was indeed trafficking in baby body parts in the late 90’s, which caused Kansas to enact a law governing fetal tissue procurement.

Several ongoing bona fide lawsuits nationwide have found Planned Parenthood to be defrauding the public. See here.

The state of Kansas should have control of dispensing federal tax funded support to the indigent and have trustworthy partners. KDHE alleges they did not get respectful access to onsite inspection from Planned Parenthood that health care grantees must provide.

Unfortunately, the authorization language for Medicaid is not the same as for the Title X federal funding. Federal changes should be made to allow states more control over tax-funded health care distribution. The Medicaid amount involved appears to be under $50,000 this year.

Kansans for Life is happy, however, that

Planned Parenthood no longer gets Kansas Title X annual health care funding–well over one-third million dollars– that is now going to full-service public clinics and hospitals.

Kansas won that battle in court and this past session, the legislature made that funding priority a permanent statute. Read more here.

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smaller baby in bronze judicial scale

Judges, protect the unborn!

Just before the holiday weekend, key arguments were filed with the state Supreme Court of Kansas on behalf of abortionists who want to continue dismembering living unborn babies limb from limb until they bleed to death, and from attorneys for the state Attorney General’s office who are defending the state’s ban on dismemberment abortions.

Last April 2015, Kansas was the first state to pass “The Unborn Child Protection from Dismemberment Abortion Act.” Four other states have now enacted this law –Oklahoma, West Virginia, Mississippi, and Alabama. The bill is on the governor’s desk in Louisiana and expected to be signed perhaps today.

The federal constitutionality of this ban has not been tested, but it was drafted as the logical consequence of the U.S. Supreme Court’s 2007 Gonzales ruling upholding a federal ban on heinous partial-birth abortion method abortions.  Gonzales was based on the reasoning that abortionists’ preferences cannot trump compelling governmental interests in regulating the medical profession and voicing respect for human life and dignity.

Hodes & Nauser

Abortionists Nauser & Hodes

BACKGROUND, KANSAS LAWSUIT
Attorneys from the New York City-based Center for Reproductive Rights (CRR) challenged the Kansas dismemberment ban in state court last June on behalf of Kansas City suburban father-daughter abortionists, Herb Hodes and Traci Nauser. They asserted that a hitherto-undiscovered Kansas constitutional foundation exists for abortions—one that precludes banning dismemberment method abortions.

 Judge Hendricks

Judge Hendricks

Shawnee District Court Judge Larry Hendricks found the novel CRR position so appealing that within moments of the oral arguments last July, he imposed an injunction preventing the ban from going into effect.

Kansas Attorney General Derek Schmidt sought immediately to undo that injunction with the Kansas state Court of Appeals. (see documents here) However the Court of Appeals rendered a split ruling January 22, allowing these abortions to continue unabated.

AG Derek Schmidt

AG Derek Schmidt

Both sides appealed to the state Supreme Court. (see AG supplemental filing and abortionist supplemental filing) In addition to arguing that the trial judge’s conclusion was in error, Schmidt’s office argued that the appellate ruling was –in fact—actually a 7-6-1 decision and is hopelessly confusing. The state Supreme Court has since agreed to review the matter but the hearing date has not yet been set.

NATIONAL IMPACT
If the claim that abortion is grounded in the state Constitution succeeds, the strategy will undoubtedly be used in every other state. Thus these new legal filings last week are of the utmost importance not just to Kansas but to all states. Of paramount concern is that credence will be given to these abortion attorneys’ claims:

  1. that a state Constitution must be contorted to contain an even more radical basis for unlimited abortion than that of the U.S. Supreme Court’s 1973 Roe v Wade ruling;
  2. that the Kansas Bill of Rights language about “life, liberty, and the pursuit of happiness” (that many states share) must elevate woman’s “self-determination” and “decisional autonomy” and ignore the distinct, separate rights of the fully-human unborn child; and
  3. that Courts must be emboldened to ignore plain reading standards and accept “evolving” reasons to invalidate duly-passed legislation.
KS court appeals

Kansas Court of Appeals

On Jan . 22, 2016, seven of the 14 members of the Kansas state Court of Appeals firmly rejected those claims. They acknowledged what seven other appellate judges ignored—that there is an unborn child’s right to life at stake.

“Because the Kansas Constitution provides no substantive due process right to abortion, our legislature is free to restrict abortion procedures to the extent it finds it appropriate.”

Furthermore, they rightly concluded there is no right to abortion “expressly found in the text” of the state Constitution and that “it should not be done by judicial decree.”

Ks Supreme Court

Kansas Supreme Court

As the Kansas Supreme Court begins consideration of this issue, they:

  • should refuse to take the pro-abortion activist stance which invents abortion protection that did not exist in the Kansas pre-Civil War Constitution, nor afterward, and
  • should properly stay within its judicial boundaries and affirm duly-passed laws that protect tiny unborn girls and boys from inhumane torture.

We can only hope and pray this Court will do the right thing.

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2015 Rally for Life 2015 Rally for Life urges ban on dismemberment abortion bans

Last April, Kansas became the first state to pass legislation barring the barbaric dismemberment method abortions. Now, under challenge  by pro-abortionists, that first-of-its-kind law, which is on hold, is about to be reviewed by the Kansas Supreme Court.

This ban prohibits the gruesome abortion method of tearing apart fully-formed, living babies– limb by limb– until they bleed to death.

The Unborn Child Protection from Dismemberment Abortion Act, model legislation drafted by the National Right to Life Committee, has since been enacted by Oklahoma, West Virginia, and (soon) Mississippi. This vital legislation has also been introduced in Pennsylvania, Minnesota, Idaho, Nebraska, Missouri, Louisiana, Rhode Island, and Utah.

Thus the impact of the ruling by our Supreme Court will extend beyond our state borders.

The premise of the Unborn Child Protection from Dismemberment Abortion Act comes from the U.S. Supreme Court Gonzales ruling. In that 2007 decision, the justices upheld a ban on partial-birth abortions by acknowledging that,

“the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.”

Abortion supporters have thus sought to find and secure in state constitutions a broader and more unassailable “right” to abortion.

pro-abortion judgesThat’s what happened in Kansas last June, when Shawnee District Court Judge Larry Hendricks blocked the ban on dismemberment abortions from going into effect.  Hendricks adopted abortion attorney arguments–literally–asserting that the Kansas state Constitution protects abortion even more fundamentally than the standard established by the 1973 Roe v. Wade decision.

The temporary 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.

The injunction allows three Kansas abortion businesses to continue to perform these grisly procedures — 629 last year–at a cost of up to $2,000 each.

That activist ruling by Judge Hendricks was left standing when the full Kansas Court of Appeals reviewed it and announced on January 22 that they were divided, 7-7.

However, pro-life Attorney General Derek Schmidt appealed the appellate decision to the state’s highest court. Schmidt argued that the appellate ruling does not make precedent and current abortion lawsuits remain in limbo without clear guidance. Yesterday, it was announced the appeal will be heard. (documents here) Here are the three questions that the state of Kansas has posed for the state Supreme Court to rule on:

  1. Does the Kansas Constitution create a right to abortion?
  2. If that right exists, does it clearly prevent government from regulating dismemberment abortions?
  3. Did the Court of Appeals wrongly accept the lower court’s facts and legal standard?

Our state Constitution was enacted in 1859, when abortion was illegal in Kansas and across the nation. Yet one radical judge of the Kansas Court of Appeals, G. Gordon Atcheson (writing to concur with the injunction against the dismemberment abortion ban) believes that the state Constitution is an “evolving” document with an “ever more enlightened understanding of humanity” and women’s “self-determination.”

Mary Kay Culp, KFL executive director commented, “The challenge we face is whether a majority of the Kansas Supreme Court will follow the U.S. Supreme Court’s holding that allows states to ban barbaric abortion methods, or whether it will follow Appellate Judge Atcheson’s opinion that the dismembering of unborn children comports with an ‘enlightened understanding of humanity’.”

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baby SImon Crosier died to a secret DNR

Baby Simon died due to a secret DNR order

The Kansas Senate has approved two pro-life bills: SB 437, Simon’s Law, and SB 436, prioritizing public clinics for Title X money that Planned Parenthood had claimed in 2011 was “theirs.”

The Senate passed both bills provisionally Monday with a final vote tally for both scheduled for Tuesday.UPDATE, State Legislative website error corrected Tues. 7pm: Final tally: SB 437,Simon’ s Law, passed 37-3 and SB 436 passed 32-8.

Sen. Jacob LaTurner (R-Pittsburg) was bill carrier for Simon’s Law, adopted from a measure originally filed in Missouri. Simon’s Law would:

  • prevent children from being denied life-sustaining care through DNR (Do Not Resuscitate) orders issued without parental knowledge or permission; and
  • require hospitals and medical facilities with policies about withholding life-sustaining treatment to disclose such policies upon request.
Sen. LaTurner

Sen. LaTurner, pro-life bill carrier

“I think this is a very good piece of legislation, very necessary to make sure that this doesn’t happen to any children in the future in the state of Kansas,” LaTurner said, after detailing the in-hospital death of baby Simon Crosier, using the words of his mother, Sheryl Crosier.

Kansans for Life had presented a collection of tragic accounts of how medically-fragile children were harmed –or  had died!– due to “secret” DNRs.  See personal testimonies and blog posts, here and here.

Simon’s Law does not criminalize any actions of doctors or hospitals; it merely sets in law the same process already in state statute for guardians when life-sustaining care is threatened to be denied to their wards.

During Monday’s floor debate, consternation about the bill came only from pro-abortion regulars, Sen. Vicki Schmidt (R-Topeka) and Sen. Laura Kelly (D-Topeka) who are each married to Kansas physicians. (No current Kansas senators are physicians or nurses by profession.)

Sen. Schmidt opened her comments on the floor by asking if, under Simon’s Law, a child in an emergency room must be kept alive if he/she had arrived without a parent. The answer was, certainly, yes! And isn’t that what every parent should be able to assume will happen? Yet Sen. Schmidt found it troubling!

Sen. Schmidt

anti-life Sen. Vicki Schmidt

Schmidt also tried to raise fears that foster parents or the state family agency would be unworkable as petitioners. However. the protocol to petition the court on behalf of a child in need of treatment, applies smoothly for those “acting in the place of” parents. Thus was the sum of her objection to Simon’s Law

To explain why no entity opposed Simon’s Law, Sen. Kelly made a false claim that “the process for it was too rushed,” with only one day’s notice given for the March 3rd hearing –thus prohibiting all stakeholders from testifying. That was both absurd and provably false!

  1. There’s a myriad of medical interest lobbyists at the Capitol who learned on Feb 10 that Simon’s Law was in process and had plenty of time to prepare testimony.
  2. Moreover, KFL records show the Senate Health committee secretary specifically notified all committee members (including Kelly) and 50 other interested parties on Feb 23–not March 2 as Kelly claimed–about the Simon’s Law hearing.

HOSPITALS HIDING
Sen. Kelly said that Children’s Mercy Hospitals in Kansas City, MO and St. Louis. MO, as well as the SMS Missouri health network had opposed the Missouri version of Simon’s Law, and had discussed their concerns with her. However, the superficial medical opposition to the Missouri version has seemed to evaporate toward the Kansas version, perhaps due to clarifying definitions and conflict protocols from KFL not in the original Missouri version.

On the Senate floor, Health & Public Welfare chairman, Sen. Michael O’Donnell (R-Wichita), rebutted Sen. Kelly’s claims of “committee process abuse”and said none of her named entities–or any other party– has ever yet to contact him with concerns. Most observers realized Kelly’s claim of abuse of process was a weak attempt to excuse why she will be passing on tomorrow’s final vote.

The unique situation in which a Kansas pro-life bill has gone unchallenged in committee may actually reflect reluctance by physicians and hospitals to state openly:

  • their unwillingness to relinquish sole control over DNRs, as well as
  • prove that a pernicious medical elitism and bias exists toward patients they believe are not “worthy” of living.
Sen. Ostmeyer

pro-life Sen. Ostmeyer

Pro-life Sen. Ralph Ostmeyer (R-Grinnell) alluded to physicians who issue DNRs in order to “put parents (not the child) out of their misery.” Sen. Ostmeyer insisted parents deserve to make the final call, adding,”Don’t let the doctor play God.”

PLANNED PARENTHOOD FUNDING ATTEMPT
The second bill passed is SB 436, which targets Title X contracts to provide comprehensive care to the indigent.  (see KFL blogs here and here and KFL testimony)

Kansas’s right to prioritize full-service providers was upheld in 2014 by federal appellate court after Planned Parenthood sued the budget allotment —and lost.

In Kansas, federal Title X reproductive health funds go first to full-service facilities, mainly public health clinics, and then public hospitals. The Kansas legislature has annually budgeted for this since 2011 (after 4 years of pro-abortion governor vetoes).

The point of SB 436 is to make permanent in statute what has been an annual budget item. On behalf of her 26 Senate co-sponsors, Sen. Caryn Tyson (R-Parker) was the bill carrier.

As she had attempted in committee, abortion supporter, Sen. Marci Francisco (D-Lawrence) once again tried to amend SB 436 to create a new revenue stream for Planned Parenthood. The amendment failed.

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