Judge allows challenge to Kansas oversight of abortion clinics to continue
By Kathy Ostrowski, State Legislative Director
Kansans for Life
Last week Shawnee County District Judge Franklin Theis refused to dismiss a challenge to Kansas’ new abortion licensing and regulation law brought by the Center for Women’s Health.
The law requires that abortions clinics be licensed and that they meet health and safety standards developed by the Department of Health.
This legislative cycle other states, such as Virginia and Pennsylvania (home of the ‘House of Horrors’ abortionist Kermit Gosnell), passed similar legislation. In the past, other states, such as South Carolina, have enacted arguably more rigorous laws which the courts have upheld.
For years Kansas passed clinic oversight provisions only to see them twice vetoed by then-Governor, Kathleen Sebelius, who now heads President Obama’s Department of Health and Human Services. But in 2011 Kansans enacted a clinic oversight bill (that included a ban on so-called “webcam” abortions) along with four other pro-life measures in the first year under pro-life Governor Sam Brownback.
Last Friday the Kansas Attorney General sent Solicitor General, Stephen McAllister, as lead spokesman to defend Kansas’ law in the Topeka court room of Judge Theis. Two Kansas attorneys and Bonnie Scott Jones, from the Center for Reproductive Rights, represented the Center for Women’s Health (CWH), one of three remaining abortion businesses in Kansas.
Kansas’ position was that Judge Theis must make a ruling on the law since abortion attorneys had challenged the law (and the resulting health department regulations) as being unconstitutional “on its face.” For such a “facial” challenge to succeed, it requires – according to the U.S. Supreme Court – that there is not even one possible situation in which the law functions properly. That burden was not at all met by CWH, and thus the state said Judge Theis should reject the suit and not permit a trial.
McAllister said that this kind of attack on duly-passed legislation traditionally would require a ruling by Judge Theis “on the law” and not a trial based on selected situations. Such a ruling could not possibly harm any so-called “rights” claimed by the abortion business; the ruling would then be appealed to the Kansas state Supreme Court that determines what rights are in the state Constitution.
Clearly CWH was and is court-shopping. It had obtained a block on the law in federal court on the day it was to go into effect and then switched their pleadings to state court. The effect was to delay a trial date for at least a year. No one disagrees their goal is to eventually succeed in the state Supreme Court dominated by Sebelius-selected Justices.
CWH is the Kansas City suburban practice which flatly refused to even to permit inspection of their clinic by the state health department, as required under the 2011 law. As shown in public records brought repeatedly to legislators’ attention, the Hodes’ horrendous malpractice record had been an impetus for the licensure bill—that and five abortion-caused deaths by licensed Kansas abortionists.
“It’s not that plaintiffs can’t comply; they don’t want to and don’t think they have to. This is about them thinking that abortion cannot be regulated,” said McAllister.
The lone encouraging note is that Judge Theis did seem to indicate that the wide-ranging questions submitted by abortion attorneys as part of the “discovery” process leading to trial may have to be reined in.
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