Planned Parenthood De-Funding Law Should Stand, Kansas Says

State   |   Steven Ertelt   |   Aug 10, 2011   |   10:45AM   |   Topeka, KS

Yesterday, the Kansas Attorney General’s office filed an appellate brief in the 10th Circuit Court of Appeals asking it to halt a judge’s decision placing a temporary hold on enforcing the new law de-funding the Planned parenthood abortion business.

U.S. District Judge J. Thomas Marten issued an injunction preventing the state from enforcing the law after Planned Parenthood of Kansas and Mid-Missouri argued that it would suffer irreparable harm if the law was allowed to stand and that it would be forced to close one or more of its facilities because Kansas would direct hundreds of thousands of taxpayer funds to non-abortion medical clinics that provide the same services without also destroying the lives of women and unborn children in abortions.

The appeal stresses that it is impossible to find a direct –or even indirect—conflict between federal Title X law (that constrains only HHS) and the Kansas proviso prioritizing public health clinics as subcontractors as opposed to agencies that do abortions. The filing said that Marten was wrong because of his “zeal to find a bad legislative motive” and getting points of the law incorrect when ruling in favor of Planned Parenthood of Kansas and Mid-Missouri last Monday.

The appeal papers say, Judge Marten “may not like the plain meaning, and may wish the statutes said something else, but they do not… it simply cannot be that the right to obtain 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.”

The appeals brief says Marten “impermissibly reaches into the government treasury to create—not restore—a new one-third-million-dollar contract for Planned Parenthood.”

Kathy Ostrowski, the legislative director for Kansans for Life, reviewed the filing.

“Marten’s ruling was taken apart, 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,” she said. “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 that 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.”

“Marten is faulted for failing to dismiss “rank speculations” about irreparable harm to Planned Parenthood and accepting their “naked allegation” that clientele could not be handled by the Wichita health department (a multi-million-dollar-funded service, four times as large as the Wichita Planned Parenthood, and annually serving the reproductive needs of 14,000 women and 121,000 WIC families),” Ostrowski says.

“As a judge who prides himself on upholding the first amendment Marten really muddles the free speech and free association issues that Planned Parenthood wrongly assert are being contravened,” she said.

Dr. Robert Moser, who was also sued in his capacity as Secretary for Kansas Department of Health and Environment, commented on the appeal, saying, “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. This highly unusual ruling implies a private organization has a right to taxpayer subsidy. The people of Kansas disagree.”

Ostrowski, of the pro-life group, says alternatives to funding an abortion business are available and that residents of the Jayhawk State have plenty of options for non-abortion family planning services like Planned Parenthood provides without having to go to an abortion business or have the state fund it.

“Kansas has approximately 80 public health clinics as well as many other full service health outlets that can provide the elementary examinations, contraceptives and disease testing typically reimbursed under Title X,” she said. “These services require ordinary medical talent not unique to Planned Parenthood.”

The lawsuit concerns the state budget provision passed this year that prioritizes recipients of Title X federal reimbursements to be full service public health clinics and hospitals.

Ostrowski said shifting the money is helpful because, when non-abortion health care providers can count on receiving a certain dollar amount, it helps that community hire a general clinician who can also deliver health services for infants, youth and seniors.

She said she was not surprised that Marten sided with Planned Parenthood given “the national press campaign portraying women’s health as being in jeopardy without abortion giant Planned Parenthood, the hard line the Obama administration took against Indiana in a similar assertion of state control over tax-funded health care, and Marten’s 2005 ruling against the 2003 AG opinion that abortion clinics were non-discretionary mandatory reporters.”

Ostrowski explained, “This case is without clear precedent and under a national microscope with a press campaign portraying women’s health in jeopardy without the involvement of abortion giant Planned Parenthood.  Judges do not operate in a media vacuum and are likely aware the Obama administration came out hard against Indiana in a similar assertion of state control over tax-funded health care.”

Judge Marten ordered the state to immediately resume funding Planned Parenthood with tax dollars. The Kansas Department of Health and Environment has already shifted $204,000 in taxpayer funding previously meant for the abortion business to the Sedgwick County health department to expand its family planning services without doing abortions. The funds were sent to the health department three days after Planned Parenthood filed its lawsuit over a law pro-life Gov. Sam Brownback signed to revoke its taxpayer funding.

The state also indicates a non-abortion health clinic in Ellis County has agreed to accept some of the $331,000 in federal funds the state doles out for family planning that Planned Parenthood normally receives.

The state of Kansas responded to the lawsuit by arguing that the 10th Amendment allows it to determine tax funding. Planned Parenthood in Kansas has received federal funding via the family planning program the state administrators for 25 years.

“The proposed injunction would commandeer one of the State’s agencies, forcing the State to cancel past contracts and enter into new ones selected by the Court,” the state argued. “The proposed injunction would violate the State’s sovereignty and unconstitutionally replace the State’s discretion with the Court’s judgment.”

Kansas also maintains the decision is in line with the purpose of the Title X federal family planning fund and says the abortion business can apply for the funds directly from the federal government as it has in other states, but added that Planned Parenthood was not “entitled” to taxpayer funding from Kansas.

Meanwhile, the papers the state filed with the federal court where Planned Parenthood sued make it clear that Planned Parenthood has not given a sufficient reason for why it deserves the funding. They say Planned Parenthood “has made no showing, nor could it, that family planning services will not be provided.”

The abortion business claims women will have a harder time accessing family planning even though the same services will be provided by an agency that doesn’t destroy unborn children in abortions.

“The effect of this provision — and indeed, its purpose — is to prevent Planned Parenthood from participating in the Title X program because it performs or is affiliated with the provision of abortion services,” Planned Parenthood said in its own legal documents.

The budget provisions say the state’s portion of the federal family planning taxpayer funds must go first to public health agencies — a similar approach to de-funding Planned Parenthood that Tennessee is using but one that differs from the Indiana approach of cutting all funding under Medicaid to Planned Parenthood directly. A federal judge  agreed to Planned Parenthood Indiana’s request to stop the law there while the lawsuit moves forward.

Kansas gets about $2.9 million in Title X funds for family planning services and, although the money can’t pay for abortions, pro-life advocates have opposed sending it to the abortion business because it is fungible.

Olathe state Rep. Lance Kinzer told the Kansas City Star, the provision cutting Planned Parenthood funding “is consistent with the general will of the people in Kansas and it sends an important message with respect to where the vast majority of Kansas are with respect to any tax dollars spent by Planned Parenthood. I think if we can provide those Title X services through an entity like county health departments that everybody has confidence in and aren’t providing abortions then there is really no downside to providing those services in that fashion.”

In other states, Indiana approved a law de-funding Planned Parenthood, and New Hampshire Planned Parenthood centers may close after the state revoked a $1.8 million grant. Montana Planned Parenthood is also grappling with funding cuts and one county in Tennessee de-funded Planned Parenthood.

North Carolina may see the closing of a Planned Parenthood center following de-funding and Planned Parenthood in Wisconsin is making cuts after the abortion business lost $1 million in taxpayer funding there. Ohio lawmakers also filed a new bill to shift funding from Planned Parenthood to health departments. Planned Parenthood could lose as much as $64 million in Texas.