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Archive for the ‘Lawsuit v Kansas’ Category

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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Senate committee chairmen O’Donnell & Masterson expedited pro-life bill hearings

Pro-life Senate chairmen,  O’Donnell & Masterson

Pro-life Senate Public Health & Welfare chair, Mike O’Donnell (R-Wichita) and Senate Ways & Means chair, Ty Masterson (R-Andover) expedited committee passage of 2 pro-life Kansas bills this week.

On Wednesday, March 9, the Senate Public Health & Welfare committee passed Simon’s Law, SB 437, a bill addressing parental rights and life-sustaining treatment for minors.

Only one committee member, Sen, Laura Kelly (D-Topeka), voted against passage. Sen. Kelly complained that medical opposition had NOT come forward to oppose this eminently reasonable and protective bill!

Simon’s Law was named for a baby, Simon Crosier, who was allowed to die due to a DNR (Do Not Resuscitate) medical order issued without knowledge or permission of his parents; they believe Simon was discriminated against due to his Trisomy 18 condition.

Simon Crosier & parents

Simon Crosier & parents

Kansans for Life brought the committee many compelling testimonials from other families whose medically fragile children were harmed and/or denied medical resuscitation– due to negative “quality of life” value judgments from physicians and hospitals. Simon’s Law will do two important things:

  1.  prevent any medical facility or practitioner from secretly placing a DNR order for children under 18 years of age without written consent of at least one parent or guardian.
  2. require that, upon request, a facility must disclose any existing written policy on denial of life-sustaining treatment.

The Senate Public Health & Welfare committee added clarifying language defining futile care and a process for DNR conflict resolution. The full Senate is expected to vote on Simon’s Law within days.

BILL THAT PLANNED PARENTHOOD HATES

Anti-life Senators Kelly & Francisco

Anti-life Senators Kelly & Francisco

On Tuesday, March 8, the Senate Ways & Means Committee passed out a pro-life bill that would make permanent the way the state health department, KDHE, assigns grants using Title X federal funding.

SB 436 codifies the original 2007 Huelskamp-Kinzer proviso, prioritizing comprehensive care facilities as Title X recipients. The proviso was annually passed– but line-item vetoed– until signed into law in 2011 under Gov. Sam Brownback.

Planned Parenthood sued in 2011 to get that Title X money which it no longer qualified for. The Tenth Circuit Court of Appeals denied their claim in 2014. The ruling vindicated Kansas, and what former KDHE secretary, Robert Moser, had maintained: “Title X was not intended to be an entitlement program for Planned Parenthood.

SB 436 prioritizes that full-service public clinics and hospitals are first in line for Title X reproductive-services money. Remaining money is secondarily prioritized to private, full-service clinics and hospitals. The measure strengthens local ‘safety net’ health clinics.

The Senate Ways & Means committee passed SB 436 with Senator Marci Francisco (D-Lawrence) as the only no vote. This bill is also expected to get a vote from the full Senate in short order.

During committee action, Sen. Francisco, with support from Sen. Laura Kelly (D-Topeka), had offered an amendment to SB 436 that would have created a brand new KDHE funding stream for Planned Parenthood! The committee soundly defeated that amendment.

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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 G. Gordon Atcheson distinguishes his support from the Leben opinion. He finds that Article 1 and 2 provide even greater protection for abortion than the Fourteenth Amendment. And this is a case study in rhetoric over legal analysis.

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

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

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

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

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APpellate court

KS Court of Appeals

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

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

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

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

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

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

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

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

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

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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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