Kansas Files Notice to Overturn Judge’s PP decision

By Kathy Ostrowski, Kansans for Life Legislative Director

Kansas Attorney General Derek Schmidt

Kansas’ Attorney General yesterday filed a notice of appeal asking the 10th Circuit Court of Appeals to overturn Federal Judge Thomas Marten’s order that blocks Kansas from contracting primarily with public health clinics for the provision of Title X family planning services. In a separate motion, the state also asked the appeals court to immediately suspend the judge’s order pending the appeal of his decision.

The 2011-2012 state budget instructs Title X contracts be prioritized to full service health providers. Judge Marten agreed Planned Parenthood would suffer irreparable harm if the statute were to go into effect and (in his words) ruled, “The purpose of the statute was to single out, punish and exclude Planned Parenthood.”

Marten’s ruling was rebutted, point by point, in a 24-page brief penned by James Armstrong of the Foulston-Siefkin law firm, hired to handle this issue by state Attorney General Derek Schmidt. The appeal verbally raked Judge Marten over the coals for his “zeal to find a bad legislative motive,” causing him to get so many points of law just plain wrong in his August 1 ruling.

* Armstrong stresses that it is impossible to find a direct –or even indirect—conflict between federal Title X law and the Kansas proviso prioritizing public health clinics as subcontractors.

* Even if Marten’s position were correct that the budget instruction ‘must be about abortion,’ the appeal said “it simply cannot be that the right to obtain an abortion in certain limited circumstances, or even to advocate for abortion, trumps both federal and state spending authority, as well as the state’s sovereign immunity.”

* Armstrong argues that Marten “added words” to the Title X federal statute and wrongly decreed that grantees may not freely sub-contract, and must use any qualified applicant—which is simply not in the law. In fact, Armstrong points out, if Marten’s error were really the law, then in those states where Planned Parenthood is the grantee, it could be forced to subcontract with pro-life entities!

Planned Parenthood had argued that without the injunction, it would have annually lost $330,000 in federal funding and been forced to close its clinics in Hays and Wichita. The appeal faulted Marten for failing to dismiss Planned Parenthood’s unsupported “rank speculations” about irreparable harm, because it admitted it was already covering annual shortfalls of $264,000 from those two clinics.

The appeal criticized Marten for issuing judicial “relief” without meeting the requisite burdens of proof. For example he accepted Planned Parenthood’s “naked allegation” that clientele could not be handled by the Wichita health department. (It is a premiere multi-million-dollar-funded service, four times as large as the Wichita Planned Parenthood, and annually serves the reproductive health care needs of 14,000 low-income women and 121,000 families who receive assistance through WIC—the Women, Infants, and Children program).

In fact there is no shortage of outlets in Kansas that provide the services typically reimbursed under Title X. Kansas’ Secretary of Health & Environment, Dr. Robert Moser, said, “Title X was not intended to be an entitlement program for Planned Parenthood. Other providers are already offering a fuller spectrum of health care for Kansas patients.”

Last month in a separate lawsuit, U.S. District Judge Carlos Murguia issued an injunction against the state’s new abortion facility regulation law. The injunction will stay in effect until there is a trial in the lawsuit which involves the other two Kansas abortion clinics—Aid for Women and Center for Women’s Health.

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