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Posts Tagged ‘Pro-life Protections Act’

Nauser and Hodes

Nauser and Hodes: court rejects their “lame claim”

The state of Kansas won a summary judgment today in Shawnee County state court, upholding that the Pro-Life Protections Act of 2013 did not violate the Kansas Constitution’s “single subject” rule of legislative construction.

Attorneys for the Center for Women’s Health, the Overland Park offices of father- daughter abortion team Herb Hodes and Traci Nauser, lost a summary judgment from District Judge Rebecca Crotty. The abortionists’ legal team outrageously tried to argue that two sections of the law were unrelated to abortion. Those sections contained language:

  1. from the 1989 U.S. Supreme Court Webster ruling, that unborn children have interests that the state may protect in law, and
  2. expanding the state health department notices of resources available to mothers facing challenging prenatal diagnoses.

The first provision underscores what kind of laws for unborn children are allowed despite the Roe v Wade ruling, and the second prevents women from turning to abortion in frustration or due to ignorance of agencies assisting the disabled.  Abortion attorneys made the lame claim to the court that because the word abortion did not appear in those provisions, they were unrelated to abortion!

KFL State Executive Director, Mary Kay Culp stated:

“This ruling shows how ridiculous it was when the abortion industry tried a few weeks ago to lay the costs of defending this law at our feet when, in the first place, they are the ones who sued the law, and, second, the court agrees today that they did so without cause!”

RELATED FILINGS
Also filed today in Judge Crotty’s court was a formal stipulation from both the state and abortion attorneys, clarifying that women seeking Kansas abortions will receive the state “Woman’s Right to Know” abortion materials–as printed–24 hours prior to abortion, including information that the clinic does not support.

Although abortionists Hodes and Nauser lost round one, the lawsuit as originally filed makes a variety of claims against the constitutionality of the Pro-Life Protections Act and further court filings are expected in state court (read more here).

In June, Hodes and Nauser failed to win a permanent injunction against the Act, but secured a temporary injunction blocking

  • one definition of emergency abortion, and
  • a mandate to place a link to the state informed consent website on the clinic’s homepage.

The latter objection to the state weblink is also the subject of a suit in federal court by Planned Parenthood (read more here and here.)

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comp health PP (2)Last week we noted Kansas pro-life laws being taken to court without good reason, however it is encouraging that the federal lawsuit filed by Comprehensive Health/Planned Parenthood of Kansas & Mid-Missouri is moving relatively quickly.

The lawsuit focuses on Kansas’ 2013 Pro-Life Protections Act, specifically the “first-in-the-nation” requirement that the link to the state “Woman’s Right to Know” abortion information website be positioned on a clinic’s home page with this description:

The Kansas Department of Health and Environment maintains a website containing objective, nonjudgmental, scientifically accurate information about the development of the unborn child, as well as video of sonogram images of the unborn child at various stages of development. The Kansas Department of Health and Environment’s website can be reached by clicking here.

As background, women obtaining Kansas abortions since 1997 have been required to sign certification forms for their medical file that they “accessed” these WRTK materials 24 hours prior to abortion. The right to supply state-issued abortion information was upheld in the 1992 Casey ruling, in which the U.S. Supreme Court said the state has a role in ensuring abortion-seeking women are well informed.

Abortionists oppose WRTK information, as it not only indicates the clinics lack candor on full informed consent, but also can reveal alternative solutions to abortion. And, in fact, Kansas annual stats show hundreds of women do not have abortions after getting this info (see KFL post here).

In August, Planned Parenthood stipulated on record all their abortion clients are receiving the printed version of these WRTK materials.  Furthermore, all Kansas abortion clinics, including Planned Parenthood, voluntarily placed a link to the state website somewhere on their websites after the WRTK materials became accessible in that manner.

So, since Planned Parenthood affirms it distributes the printed WRTK materials (even while objecting to the content) and links to the state WRTK website, why do they oppose the weblink being positioned on their homepage?

They argue that such prominent positioning with an “accuracy” tagline gives the appearance they endorse the WRTK materials. They are particularly offended by WRTK facts about the pain capability of the unborn child and the statement that “abortion terminates the life of a whole, separate, unique, living human being.”

The State of Kansas has supplied strong rebuttal filings in defense of this lawsuit. They argue that the WRTK weblink does not interfere with any First Amendment speech rights as the abortionist is not prohibited from voicing or publishing opinions in disagreement with the Kansas information, as one clinic has notoriously done for years (see KFL post here).

Rather, defense attorneys say this WRTK weblink with accuracy description is permissible state regulation of abortion commerce. After all, Kansas Planned Parenthood is a business; the “Who we are” section of their website reads: “Our primary service is providing abortion services from 4 to 22 weeks gestation.” And at a profit.

Americans experience the effect of government regulation of business every day, to name a few:

  • ads for pharmaceutical products must disclose the drugs’ side effects;
  • nutritional supplement labels contain disclaimers that their claimed benefits have not been verified by the FDA;
  • cigarette packages contain cancer warnings.

Abortionists may bristle at government consumer protection actions, but,“The well-being of people who may be unsophisticated in health care matters is a compelling interest of the state” under Kansas case law (Bolton, 1979).

Kansas defense attorneys point to four other rulings since Casey [Lakey (TX 2012), Rounds II (MN, ND,SD 2008), Summit (AL 2003), Eubanks (KY 2000)] where courts denied abortionists’ claim that state informed consent regulation violated their free speech.

Both Planned Parenthood and the state of Kansas have filed formal requests that federal Judge Kathryn Vratil rule without a trial– as a matter of judging on the law—whether the weblink is permissible.  We believe Kansas will prevail.

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baby money (2)Yesterday’s national abortion story was the periodic report/complaint about the high legal expenses the state of Kansas has incurred in defending the constitutionality of four pro-life laws.  Under the title, “Kansas Abortion Lawsuits Cost $913K,” AP’s John Hanna writes, “Kansas has paid more than $913,000 to two private law firms that are helping the state defend anti-abortion laws enacted since conservative Republican Gov. Sam Brownback took office, and such expenses appear likely to grow.”

The reality is, that after the U.S. Supreme Court Roe decision legalized abortion, every state law trying to regulate abortion– no matter how carefully crafted– is subject to court challenges.  Of our seven recent pro-life laws, four have been sued. We expect to prevail, but court action moves slowly, sometimes at a snail’s pace.

Lengthy, and even patently ludicrous, legal arguments that our opponents propose in litigation must be answered.

The first recent Kansas pro-life law that went to court was our 2011 law ending coverage for elective abortion as part of standard private health insurance. This was a law that had already been on the books in other states for decades, yet the ACLU and Kansas N.O.W. insisted on filing a challenge. We WON, but with a legal defense cost of $149,000.

Defense expenses Kansas has paid to two outside law firms for three other ongoing pro-life cases include:

  1. $126,000 for two challenges to the 2013 Pro-Life Protections Act;
  2. $386,000 for the Title X budget case with an initial ruling favoring Planned Parenthood, and now under appeal;
  3. $252,000 for defense of the 2011 law establishing minimum abortion clinic safety and sanitary regulations, including a ban on webcam abortions.

Kansas’ 2013 comprehensive Pro-Life Protections Act is in the initial stages of two suits, one brought in federal court by Planned Parenthood and the other in state court by the Center for Women’s Health. Both clinics have so far only gained a temporary block on two minuscule provisions, instead of stopping the entire law. Our state defense attorneys have had to rebut a multitude of claims, including:

  • misrepresentations about how the law was passed,
  • ridiculous assertions about abortion–related topics,
  • opposition to a states’ rights position the U.S. Supreme Court approved 25 years ago, and
  • complaints about informed consent provisions that clinics have already complied with for years!

The Title X case should have been the national abortion story …how Planned Parenthood is propping up two of its financially failing clinics with approximately $400,000 in tax money that it is not properly eligible for!

Explanation?  Planned Parenthood sued the 2011 Kansas budget provision that requires Title X federal family planning money go to full service health facilities that best serve the indigent. District court Judge Thomas Marten ruled in Planned Parenthood’s favor, and –without proper authority– ordered funding of Title X money for their “feeder”clinics in Hays and Wichita that were losing  nearly one quarter million dollars annually.

And while Kansas has waited over a year for an overturning of that ruling from the Tenth Circuit Court of Appeals, we are compelled to keep sending non-recoverable money to Planned Parenthood while also keeping lawyers busy battling this ruling.  It is a steep price, but the end result is important for Kansas’ state sovereignty as well as for other states with similar laws.

Then there’s the lawsuit fighting our 2011 clinic regulation bill which, outside the webcam ban, largely imitates the South Carolina version that the U.S. Supreme Court let stand twenty years ago.  The case is creeping along in state court.

That fact that our pro-life Attorney General, Derek Schmidt, pays for the assistance of two private law firms does not “offend good financial stewardship” as complained by Planned Parenthood’s CEO, Peter Brownlie.  Mary Kay Culp, executive director of Kansans for Life observes that, for our opponents to complain about the cost expended on lawsuits they filed, is ridiculous!

It is appreciated that our AG sought highly qualified defense firms.  State AG offices aren’t generally populated by attorneys with abortion expertise—and as our readers know—the rules for abortion seem to be different than for every other field.

States that pass pro-life laws only to have their AG undermine the defense of such laws are truly in a bind. Thankfully, Kansas is not now in that spot, as we were when former Gov. Kathleen Sebelius’ hand-picked, pro-abortion Attorney General Steve Six failed to properly prosecute George Tiller for violating late-term abortion statutes.

When it comes to passing life-protective laws, logic and public support cannot protect them from costly litigation, but the price is worth paying.

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Father/daughter abortionists Hodes & Nauser

Traci Nauser & Herb Hodes

The Kansas 2013 Pro-Life Protections Act creates pro-life public policies permissible under U.S. Supreme Court abortion rulings, but that hasn’t stopped abortionists Herb Hodes and Traci Nauser from trying to stop it.

Last week, attorneys for the father-daughter abortion team at the Kansas City-suburban Center for Women’s Health asked the district court to throw out the entire law before their lawsuit goes to trial.  They want a ruling on whether the Act contained more than one subject, violating the rule of statutory construction.

AP’s John Hanna reported on the filing and cites several recent (non-abortion) state court cases that show little support for any success by lawsuits claiming Kansas laws violated the “single subject” mandate.  This is not surprising, as the state’s drafting department is well aware of this requirement and is very careful to advise when proposed legislation might need to be segmented into separate bills.

The Pro-Life Protections Act states that it “concerns abortion” and contains a sex-selection abortion ban, abortion-related tax funding limits, and abortion informed consent provisions. Nevertheless, abortion lawyers call it a “hodgepodge” and specifically—and absurdly –claim that two sections have no relation to abortion because they do not actually use the word ‘abortion’ in the provisions.

The sections they criticize are:

  1. Section 2, asserting the state will protect interests of the unborn child and his/her parents (taken verbatim from the 1989 U.S. Supreme Court Webster ruling), and
  2. Section 9, adopting the 2008 Kennedy-Brownback federal bill to provide enhanced counseling for medically challenging prenatal diagnoses.

The abortion filing desperately tries to convince the court that these two sections wander from the abortion subject by describing Section 2 as a “legislative policy statement concerning the legal status of fertilized eggs” and Section 9 as authorizing “the provision of supportive services to parents and prospective parents of children with disabilities.”

Aside from both sections’ logical connection to abortion, Section 2 uses ‘unborn child’ and Section 9 repeatedly uses ‘prenatal’, yet the court is supposed to accept the abortion attorneys’ claim of irrelevance to abortion?

Section 2 is the backbone for the Act, showing that—even under Roe v Wade—the state has the right to defend the unborn in tort law and to set spending priorities for promoting life. Attorneys for the state defending the Act, assert in their filing that Section 9 provides services to parents of disabled children “in order to promote childbirth and carrying an unborn child to term.”

In testimony supporting the Act, Kansans for Life explained Section 9 as answering the need for the health department to assist families confronting disability diagnoses, in the face of ever-escalating prenatal diagnostic tests that encourage the elimination of individuals with challenging conditions. [As an aside, under Obamacare, prenatal testing, but not counseling, is authorized.]

The shock of certain prenatal diagnoses can too often drive a mother to agree to abortion, especially when ObGyn doctors are themselves not well informed about the medical condition and available services.  Providing more immediate access to information about specialized treatments and community support allows a more fully informed decision to be made by families coping with unexpected news. This is obviously an abortion-related provision, although the counseling services extend past delivery.

It is exceedingly frustrating that the abortion industry can waste court time on such shoddy legal claims and we are glad that both the federal and district courts (in two separate suits, see here and here) have not blocked the entire Pro-Life Protections Act.

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Federal Judge Kathyrn Vratil

Federal Judge
Kathryn Vratil

Six weeks ago, Kansans for Life characterized the Planned Parenthood lawsuit against the newly-passed Pro-Life Protections Act as “a desperate move to appease its base in the wake of increased pro-life laws that reflect the will of the people but jeopardize the bottom line of abortion businesses.”

Developments in the court of Federal Judge Kathryn Vratil show that KFL was right–the filing was not justified, just grandstanding and Planned Parenthood is now withdrawing two-thirds of its lawsuit’s complaints!

In a 20-minute phone conference Monday afternoon with Judge Vratil, attorneys for Comprehensive Health/Planned Parenthood of Overland Park confirmed that they are amending their original filing to:

  1. withdraw opposition to the statement “abortion terminates the life of a whole, separate, unique, living human being”;
  2. withdraw opposition to the information about the pain-capability of the unborn child; but
  3. retain opposition to a requirement that each clinic’s online home page feature a hyperlink to the state’s informed consent website.

Planned Parenthood’s “backpedaling” amendments will be filed formally on Wednesday and the state of Kansas defense attorneys plan to accept them. A hearing before Judge Vratil on the hyperlink issue will happen later this fall.

In the meantime, the entire Pro-Life Protections Act has gone into effect except the hyperlink mandate and one medical emergency definition, both of which were temporarily enjoined by Shawnee County District Judge Rebecca Crotty. Judge Vratil has acknowledged that Judge Crotty’s injunction is in effect– the result of a separate lawsuit filed in state court by the Overland Park Center for Women’s Health (owned by abortionists Herb Hodes and Traci Nauser).

During the two years of hearings for the Pro-Life Protections Act, abortion supporters maligned it as ‘sweeping’, ‘extremist’, ‘a mandate that abortionists lie to women’, and ‘support for obstetricians to trick women into birthing disabled children’.  They wailed about provisions of the Act that removed tax-funding for abortion training, ended tax benefits for abortionists and restricted abortionists from teaching classroom sex-ed. They huffed and puffed about language the U.S. Supreme Court approved in 1989 that human life begins at fertilization.

Yet now we see that their ONLY legal complaint (other than a hyper-technical misinterpretation of one of the medical emergency definitions) is that they must acknowledge the scientific accuracy of the state health department’s informed consent website –a website to which abortion clinics have voluntarily linked for years!

Abortion businesses are a commercial enterprise subject to government regulation.  It is an extremely weak argument they put forth (in both federal and state court) that their “free speech” rights are being violated when required to label the state information in the hyperlink as medically accurate.

We expect Kansas to win both the federal and state lawsuits, but it’s a shame that tax payers have to pay to defend good, protective legislation from abortion business nuisance suits.

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District Judge Rebecca Crotty

District Judge Rebecca Crotty

Nearly 99 % of the Kansas Pro-life Protections Act, HB 2253, will go into effect on Monday after the Center for Women’s Health (CWH) in Overland Park failed to get the entire law enjoined in state court.

Two minor provisions have been blocked while the case proceeds under Shawnee District Judge Rebecca Crotty. Judge Crotty ruled that CWH had not met the legal standard for winning a restraining order against the entire law –even though they had submitted an “everything but the kitchen sink” legal filing.

What will not go into effect from HB 2253 is

  1. a specific medical emergency definition already in Kansas statute that needs clarification for abortions before 22 weeks gestation, and
  2. a new requirement that the clinic website’s homepage put a descriptive label on a hyperlink to the state’s right to know website .

Neither provision is substantive and clarification of the definition can easily be remedied.

As to the hyperlink, Kansas abortion clinic websites have long included the state link, but object to the labeling of the state information as medically accurate. The U.S. Supreme Court , in its 1992 Casey ruling, established the state’s right to force clinics to provide access to scientifically accurate information prepared by the state concerning gestational development and medical risks of abortion since women had routinely been given misinformation, including that their unborn child was “only a clump of cells.”

In related litigation, another clinic is suing HB 2253. Comprehensive Health/Planned Parenthood of Kansas Mid-Missouri last week filed in federal court to obtain an injunction against section 14 of the law, which governs the state-prepared informed consent. Their legal filing also objects to the hyperlink labeled as medically accurate, as well as the information about the pain capability of the unborn child at 22 weeks gestation, and the sentence “abortion terminates the life of a whole, separate, unique, living human being.”

Kansas City federal judge Kathryn Vratil denied Planned Parenthood an immediate injunction on Wednesday but the matter is not closed, with another hearing scheduled for July 29.

CWH is the medical office of Overland Park abortionists, Herbert Hodes and daughter Traci Nauser, who sued to block implementation of the 2011 Kansas abortion clinic licensure law.

In the new suit against HB 2253, they assert that they are motivated by their Jewish religion to perform abortions. They also complain that the law

  • wrongly states pregnancy begins at conception;
  • unfairly bans funding for abortion, ends tax breaks for abortion businesses, and protects pro-life entities from retaliation; and
  • prevents abortionists from attending school functions or from volunteering. [This is a misstatement of the provision that prevents school sex-ed classes from using abortion staff and their materials, which is a law that Missouri enacted several years ago]

Although Kansas taxpayers must now defend this law in court, during that time almost the entire law will be in effect.  We are confident of prevailing against baseless clinic objections and are relieved that the court limited intervention to two very minor issues.

UPDATE: ABORTION LAWSUITS vs KANSAS
The state Attorney General’s Office has promised to “rigorously defend” HB 2253, assisted by the same law firm utilized in three other suits filed against pro-life laws enacted in 2011.

In the first case, Kansas won a challenge from the ACLU against the law banning private insurance from automatic coverage of elective abortion.

The second suit, opposing the state’s selection of full service public clinics and hospitals for Title X grants, is on appeal, awaiting a long-overdue ruling from the Tenth Circuit. In the meantime, taxpayers have been forced to send $343,000 to Planned Parenthood and the now-defunct Dodge City Family Planning Clinic.

The third suit, in which CWH blocked the long-sought state law regulating  abortion clinics, is moving at a snail’s pace.

Unfortunately, the abortion industry refuses to accept the democratic process of lawmaking, insisting on searching out activist courts in hope of undoing abortion regulation.

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WRTKIn a desperate move to appease its base–in the wake of increased pro-life laws that reflect the will of the people but jeopardize the bottom line of abortion businesses–Planned Parenthood has sued section 14 of the  Kansas 2013 Pro-Life Protections Act, claiming it violates first and fourteenth amendment rights to free speech and abortion access.

The press release from Planned Parenthood today, announcing the lawsuit, attacks the validity of state supervision of abortion clinic information as unwarranted legislation.  However, the Pro-life Protection Act is a response to the notorious omissions by clinics when it comes to abortion harms and the true gestational development of unborn children. The women considering abortion should be afforded all accurate data and they are the ones harmed by today’s litigation.

The money taxpayers are forced to use to defend all of the Constitutionally-sound Kansas pro-life laws are a result of the abortion clinics’ greed. This is the fourth challenge to Kansas pro-life laws, Kansas:

  •  won the suit against the abortion insurance law;
  • awaits a ruling  on appeal to the Tenth Circuit Court of Appeals on the 2011 Title X funding law;
  • is enduring an ongoing state court lawsuit opposing state health department oversight of abortion clinics, which–by precedent in other states– is a meritless suit.

We are confident that Kansas will prevail in these suits and the one filed today. Kansas should strongly oppose any injunction or potential consent order that would censor those few lines of information, and force the reprinting of the state Right-to Know booklets.

The Court should refuse the injunction sought by Planned Parenthood, based on several court rulings, notably the 1992 Casey ruling by the U.S. Supreme Court. In that ruling, women were guaranteed abortion informed consent materials supplied by the state, and

the Court denied abortionists’ right of free speech was infringed as they could disavow any or all of the states’ content.

For example, the website for the Aid for Women KCK clinic has bashed the content of the Right to Know materials for many years; for just one example here, currently on the clinic’s ’24 hour consent’ page is this bullet point disputing the state info:
• 12. WE MUST UNTRUTHFULLY TELL YOU (KSA 65-6709(b)(5)) – “The abortion will terminate the life of a whole, separate, unique, living human being.” This is untruthful because the fetus is quite dependent upon, not separate from, the maternal placental oxygen and nutrient acquisition and kidney’s waste disposal. The word “whole” implies “complete” but the fetus is not truly completed until birth. Also, cancer is unique, human and living, yet not deserving of life.”

Yes, this clinic equates an unborn child with cancer, which would be laughable were it not so tragic.  The point the Casey Court made 21 years ago is that the state has a right to issue medically accurate data, and the abortionist can refute it–as this clinic does.

INFORMED CONSENT

  • Under the Kansas Woman’s Right to Know statutes of 1997, women seeking abortion must be given informational materials relating to the abortion procedure and risks .
  • The information is available in printed form and online.
  • The informed consent information is prepared by the Kansas state department of health (KDHE) and is medically accurate information the woman deserves,  in accordance with abortion court rulings.
  • The woman must sign a paper in the abortionists’ office that she “accessed” this info 24 hours prior to the performance of the abortion. The abortionist is never required to quiz her about the content, or ‘tell” the woman anything from the materials.
  • Section 14 merely copies into statute the agency information that women seeking Kansas abortions have been reading for years.

COMPLAINTS REBUTTED
Specifically, Planned Parenthood complains about 3 items in section 14:

  1. The mandate to have a hyperlink to the state website on the abortion informed consent section of the clinic website.
    REBUT: Two of the three KC area clinics , including Planned Parenthood, have already included this link for a long time, and the third clinic has done so inconsistently. We are not aware of the website for the new Wichita clinic.
  2. The sentence “Abortion terminates the life of a whole, separate, unique living human being.”
    REBUT: This sentence was found medically accurate by the 8th Circuit Court of Appeals. This sentence is one line in many pages of the Kansas Right to Know materials, and has been part of materials for years.
  3. The information that unborn children of 22 weeks gestational age feel pain. The clinic claims it is irrelevant as they do no abortions at this stage.
    REBUT. Abortions at 22 weeks gestation are banned under Kansas law, with limited exceptions, but it is certainly relevant for a woman to consider whether her abortion at 21.6 weeks– or 18 weeks or less –may be inflicting some pain on her child. Again this information has been in the state materials for 2 years.

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