Father-daughter abortion team offer weak challenge to Kansas’ Pro-Life Protections Act

By Kathy Ostrowski, Legislative Director, Kansans for Life

Traci Nauser (left) and Herbert Hodes

Traci Nauser (left) and Herbert Hodes

While the Kansas 2013 “Pro-Life Protections Act” creates pro-life public policies that are clearly permissible under U.S. Supreme Court rulings, that hasn’t stopped various abortion attorneys from trying to stop it.

As NRL News Today readers may recall, nearly 99 % of the Kansas Pro-life Protections Act, HB 2253, went into effect after the Center for Women’s Health in Overland Park failed to get the entire law enjoined in state court. (See “Kansas Pro-Life Law goes into effect with minor change.”)

Undeterred, attorneys for Herbert Hodes and Traci Nauser, the father-daughter abortion team that ply their trade at the Center for Women’s Health in Overland Park, asked the district court last week to throw out the entire law before their lawsuit even goes to trial. They want a ruling on whether the Act contained more than one subject.

The Associated Press’s John Hanna reported on the filing. Hanna cited several recent state court cases (that do not involve abortion) which show little likelihood that a lawsuit claiming Kansas laws violated the “single subject” mandate would succeed. This is not surprising; 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.

Their 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 on behalf of the Act, Kansans for Life explained Section 9 as answering the need for the health department to assist families facing disability diagnoses, especially with the ever- escalating prenatal diagnostic tests encouraging the elimination of individuals with challenging conditions.

The shock of certain prenatal diagnoses can too often drive a mother to agree to abortion, especially when Ob-Gyn 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.