Kansas Appeals Ruling Forcing it to Fund Planned Parenthood

State   |   Steven Ertelt   |   Aug 31, 2011   |   3:10PM   |   Topeka, KS

The state of Kansas will appeal the latest ruling from a federal judge forcing the state to send taxpayer funds to the Planned Parenthood abortion business. The state announced it will comply with the most recent decision.

Late Tuesday, a judge ordered the state to send taxpayer funds to the abortion business following complaints from it that it lost state public funding. U.S. District Judge J. Thomas Marten ruled that Kansas must fund the abortion business even though it did not cancel an contracts with the agency that were in effect at the time a new state provision went into place denying taxpayer funding via the family planning program to any agencies that do abortions.

Marten, in his ruling, also rejected the state’s request to only give Planned Parenthood taxpayer money on a monthly basis while its lawsuit moves forward rather than in a quarterly lump sum covering three months. Planned Parenthood of Kansas and Western Missouri had complained earlier Tuesday that it would have to close its Hays, Kansas abortion referral clinic by Friday if the judge did not order the stand to fork over tax money to fund it.

“The court finds no injury to the defendants in maintaining the prior payment schedule, as they will be providing funding in a manner consistent with prior practice between the parties, and to an organization which has consistently provided satisfactory family planning services,” he wrote. “Defendants shall resume funding in accordance with this order immediately and shall continue such funding until further order of this court or the U. S. Court of Appeals for the 10th Circuit modifying this order.”

Earlier, 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.

Today, the Kansas Attorney General’s Office issued a statement to Kansans for Life: “The state will comply with the Judge’s order but will continue its appeal to the Tenth Circuit United States Court of Appeals.”

Responding to the ruling, Kansans for Life legislative director Kathy Ostrowski said, “It is mind-boggling that this judge thinks he has the authority to give taxpayer money to Planned Parenthood with no legal basis.”

“He continues to pretend this is a free speech case in which Planned Parenthood was denied participation as punishment for their abortion involvement.  However, the Kansas budget provision being sued, that prioritizes full service public clinics, also resulted in a lack of a Title X contract for another ‘family-planning-only’ business unrelated to Planned Parenthood or abortion,” she continued.

“Marten ignores both the fundamental contractual issue and the state’s rock-solid objections,” Ostrowski explains.

1) There is no federal right to apply for, or receive, Title X funds from the state; thus Planned Parenthood has not been denied any right that Marten should rectify.
Only the federal government must accept applications for Title X grants, thus Planned Parenthood can only claim the right to apply directly to HHS for a grant, as other Planned Parenthood businesses have done in some states.

2) The Eleventh Amendment governing state sovereignty bars any judge from entering a mandatory injunction requiring the state to enter into contract with Planned Parenthood.
Planned Parenthood’s suit demands that the state “honor their contracts” but there is no 2011-2012 contract with Planned Parenthood to honor/restore. This is the third time Marten has ruled on the case and ignored this foundational issue.

3) The judge ignores the Attorney General’s arguments that the state is harmed when it is forced to make double payments, including unrecoverable money to failing private businesses.
“The court finds no injury to the defendants [KDHE] in maintaining the prior payment schedule,” wrote Marten. The state health department has already contracted with public clinics in Wichita and Hays, and is now being ordered to prepay money to Planned Parenthood businesses operating in the red for services that cannot be guaranteed.

4) No facts back up Planned Parenthood assertions, swallowed whole by the judge, that women would not get satisfactory family planning without them.
Marten ruled, “the residents of Hays and Wichita will be best assured of continued family planning services by maintaining the status quo,”…with “an organization which has consistently provided satisfactory family planning services,” … and otherwise would “face higher costs, longer wait or travel times for appointments and have less access to services.”

Sec. 59.5 of Title X regulations specify “nondirective counseling on each of the [pregnancy] options, and referral upon request. Originally, Title X did not permit any referrals, and that was changed to allow explanation of abortion, and referral if asked for.  However, state defense attorneys show that Planned Parenthood violates that prohibition because the websites of the Wichita and Hays Planned Parenthood “openly tout that those facilities will make referrals to abortion providers.”

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.