Fed appeals Court overturns Planned Parenthood funding


By Kathy Ostrowski, Legislative Director, Kansans for Life

Federal Judge Thomas Marten

Federal Judge Thomas Marten

On Tuesday a three-member panel of the Tenth Circuit Court of Appeals overturned a Kansas federal district court ruling that Planned Parenthood was unfairly disfavored and penalized by a 2011 funding authorization that directs that family planning services financed in any way under “Title X” federal rules must be contracted primarily with public health clinics and secondarily with qualified non-public hospitals or health centers that provide comprehensive health care–primary and preventative.

The panel sent the case back to Judge J. Thomas Marten, who had remarked at the time that he expected his 2012 decision to be overruled.

The appeals panel ruled that Planned Parenthood lacked standing to pursue its claims in federal court, and that its claim of a First Amendment violation lacked merit

The case stems from a 2011 lawsuit filed by Planned Parenthood of Kansas & Mid-Missouri on behalf of its Kansas abortion-referral facilities in Wichita and Hays. Both clinics became ineligible to receive Title X federal family planning funding when the state enacted an annually-renewed proviso that such money go to full-service public health clinics and hospitals.

Planned Parenthood claimed it would be “irreparably damaged” without “its” Title X funding. However, Dr. Robert Moser, head of the Kansas health department that selects recipient facilities, described Title X funds as belonging to the state taxpayers. He said, “Title X was not intended to be an entitlement program for Planned Parenthood.”

Planned Parenthood had argued that it was losing out on money due to impermissible “anti-abortion” animosity from the legislature and Gov. Sam Brownback. But the Kansas proviso doesn’t mention anything about providing or supporting abortion. It merely prioritizes that Title X grants go to local full service health department clinics.

Planned Parenthood also claimed that the state could not impose additional requirements for facilities to obtain Title X funding-–in this case, maximizing use of a federal grant program to support health care for the poor. Court documents revealed that women at or below poverty level comprised merely 15% of Planned Parenthood’s Kansas clients, while similarly economically disadvantaged women comprised 78% of those served by the health department in Wichita, which would have received the Title X grants.

In August 2011 Judge Marten ruled that the Kansas health department must continue to fund two Planned Parenthood businesses while litigation continued.  In October 2011, he ordered additional funding to another family planning clinic in western Kansas, which closed 14 months later. To date, at least $400,000 has been paid out to those three clinics by Marten’s order.

In the last three years, abortion advocates and clinics have sued four Kansas pro-life measures.

  • Kansas won the first lawsuit that challenged a 2011 law that excludes elective abortion from private health insurance coverage without a “rider.”
  • An abortion-friendly state judge has stalled litigation on the 2011 pro-life abortion clinic licensure law, under injunction.
  • Abortion interests failed to block the comprehensive 2013 Pro-Life Protections Act with the exception of two tiny provisions which are being addressed.
  • As noted above Kansas successfully appealed Judge Marten’s ruling that Planned Parenthood had standing to sue in federal court for perceived discrimination in Title X eligibility.

Kansas pro-life legislation is well-drafted and being defended by talented attorneys working for the state Attorney General.