Posts Tagged ‘Kansas Supreme Court’

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

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.

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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Ks Supreme Ct

The Kansas Supreme Court

Filed electronically after 5p.m. tonight, Monday, the Kansas Supreme Court has granted review of the appeal by the Kansas Attorney General in the matter of the Kansas Unborn Child Protection from Dismemberment Abortion Act. (documents here)

The hearing has not yet been set and both sides will file supplemental briefs to be submitted within 30 days. Here is the  summary of litigation thus far:

Pro-life Gov. Sam Brownback signed SB 95, the dismemberment method ban, on April 7, 2015 after it passed 31-9 in the Senate and 98-26 in the House. The law is not in effect.

The Overland Park Center for Women’s Health (CWH), the office of father -daughter abortion duo, Herb Hodes and Traci Nauser, filed suit against the ban in federal court and won a temporary injunction from Shawnee District Court Judge Larry Hendricks June 25, 2015.  Judge Hendricks adopted the arguments of the abortion attorneys hook, line and sinker.

Attorney General Derek Schmidt filed an appeal of that ruling, claiming that it is “a fantasy” that the Kansas state constitution of 1859 protects a right to abortion (much less one that upholds gruesome dismemberment of living, well-formed unborn children!).

The appeal was taken up by the Kansas Court of Appeals when the Kansas Supreme Court refused to intervene. On Jan. 22, 2016, the appellate court delivered a split ruling which meant the lower court temporary injunction would be upheld.

The Attorney General again filed an appeal, this time asking the Kansas Supreme Court to expeditiously review the appellate decision, asserting that

the Court of Appeals wasn’t truly split, but rather had ruled 7-6-1, finding there is no protection for abortion under the Kansas Constitution.

The Kansas Supreme Court needs to move expeditiously for several reasons, urges the A.G. filing; two other lawsuits filed by CWH (in 2011 and 2013) are lagging in state court and would be directly impacted by a decision about this so-called fundamental state right to abortion.

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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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Former AG Kline

Phill Kline

UPDATE Oct. 26 Kline case transferred to Oklahoma court
Former Kansas Attorney General Phill Kline has filed suit in federal court to have his law license reinstated, due to procedural errors on the part of the Kansas State Supreme Court in their Oct. 2013 ruling.

Kansans for Life Executive Director Mary Kay Culp said,

“Former AG Phill Kline was willing to carry the ball further than anyone against the Kansas late-term abortion cartel, and paid the price for it. He has every right to move to get his license back.”

According to today’s story by Topeka Capitol Journal reporter Justin Wingerter,

“the Kansas Supreme Court [found]’clear and convincing evidence’ that Kline had acted unprofessionally as he pursued criminal charges against abortion providers.  “The violations we have found are significant and numerous, and Kline’s inability or refusal to acknowledge or address their significance is particularly troubling in light of his service as the chief prosecuting attorney for this state and its most populous county,” the Kansas Supreme Court wrote in disbarring Kline.”

Kline’s disfavor with the Supreme Court began with his office’s attempted prosecution of child rape and illegal abortions in 2003.

The state’s attorney ethics division (subject only to the Supreme Court) had pursued charges against Kline’s conduct even after their own investigative staff recommended they not do so and even after a panel recommended only a suspension.

Before the final ruling was decided, Kline had formally challenged the bias of the Supreme Court in the revocation matter and –in a notably unprecedented move–five members recused themselves, leaving only two justices and replacements to decide the matter.  Kline’s suit claims that the state Constitution requires no less than four justices may legally issue such a ruling.

The perception of a wrongful direction of the court was voiced by 90 state representatives and senators in a March 2011 press conference calling for the government to prosecute child rape cover-ups at Planned Parenthood instead of “persecuting” former AG Phill Kline. Legislators asserted:

  • During the 2001-2003 time frame, Kline discovered there were 249 recorded abortions performed on children 14 years of age or under, but only 2 child abuse reports made, one from Planned Parenthood and one from the now-closed clinic of George Tiller.
  • An unholy alliance existed in this state for 8 years between the former Governor Sebelius’ administration, the abortion industry and the Courts.
  • Kline has been cleared by the disciplinary administrator’s own investigators, and further, his conduct has been approved by multiple judges.

It is significant that even the Supreme Court’s then-Chief Justice Kay McFarland felt compelled to write this extraordinary comment in one of the several cases surrounding the attempted prosecutions of the abortion industry:

“It appears to me that the majority invokes our extraordinary inherent power to sanction simply to provide a platform from which it can denigrate Kline for actions that it cannot find to have been in violation of any law and to heap scorn upon him for his attitude and behavior that does not rise to the level of contempt. This is the very antithesis of ‘restraint and discretion’ and is not an appropriate exercise of our inherent power.”

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

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

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

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

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

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

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

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

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

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

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

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

Ks Supreme Court

Kansas Supreme Court

Large political considerations are in play.

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

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

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

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

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

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

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Sec. of State Kobach (l) tried to keep Chad Taylor on US Senate ballot

Sec. of State Kris Kobach (l) was overruled on keeping Chad Taylor (r) on ballot

As we predicted after Tuesday’s hearing, the Kansas Supreme Court ordered that the name of Shawnee County District Attorney, Chad Taylor, be removed from the ballot as the Democrat contender for U.S. Senate.

It remains unsettled whether the final ballot for the Kansas U.S. Senate seat will include a Democrat because Secretary of State, Kris Kobach, asserts that the state Democrat Party is legally obligated to submit a replacement candidate for Taylor. At a press conference Thursday, Kobach announced the new Democrat name must be received by noon, Sept. 26.

UPDATE, 5pm, Fri. Sept.19: The AP now reports that Kobach’s office sent a directive to county officials, telling them to move ahead with mailing the ballots without having a Democrat nominee listed for the U.S. Senate race.

Taylor had filed at the last possible hour to remove his name (see more here) and has not yet commented on the reason he withdrew. The Kansas law on this matter was supposedly strengthened to prevent such late withdrawals of candidates for purely partisan calculations that disenfranchise those who voted in the primary.

The state Supreme Court’s unanimous ruling late Thursday remained very narrow and focused, declaring that Taylor’s official request to remove his name “pursuant to” the statute was acceptable, without a declaration of his “incapability to serve.”

Kobach told Bloomberg News he was disappointed:

 “The court’s decision essentially nullifies what the legislature did in 1997 when they inserted 14 words into the law to require a candidate declare that he is incapable of fulfilling the duties of office.”

Incumbent Republican U.S. Senator, Pat Roberts, is the only pro-life candidate for that office. He commented about the ruling, “This is not only a travesty to Kansas voters, but it’s a travesty to the judicial system and our electoral process.”

Pundits point out that elimination of a Democrat nominee will benefit lately-entered “independent” candidate,  Greg Orman. Multi-millionnaire Orman has already spent over $900,000.00 on TV commercials.

The state Supreme Court did not rule Thursday on the legal duty to supply a Democrat substitute for Taylor, but a motion for the Court to address this issue has now been filed by a disgruntled Democrat.

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