Sunday, September 11, 2005

Kansas Supreme Court Hears Arguments in Abortion Medical Records Case; AG Wants To Investigate for Felonies by Clinics 11 Sep 2005 Kaiser Medical News Abortion records suit in reality a political showdown between the clinics and the anti-abortion KS attorney general with abortion opponents claiming clinics receive political cover while clinics brand the attorney general an extremist. Kansas City Star Kansas Attorney General Phill Kline (R) is seeking access to the unedited medical records of 90 women and girls who underwent late-term abortions at two Kansas clinics in 2003 because he believes there is probable cause that each record contains evidence of felony crimes, Deputy Attorney General Eric Rucker told the Kansas Supreme Court in Topeka on Thursday, the... Kansas City Star reports (Klepper, Kansas City Star, 9/9). Kline last year subpoenaed the records from the two clinics, Comprehensive Health, which is operated by Planned Parenthood of Kansas and Mid-Missouri in Overland Park, Kan., and Women's Health Care Services in Wichita, Kan. The records include each patient's name, medical history, birth control practices, psychological profile and sexual history and were requested for all women and girls who sought abortions at or after 22 weeks' gestation (Kaiser Daily Reproductive Health Report, 9/6). Nearly 75% of the women were legal adults when they underwent the procedure (Kansas City Star, 9/9). The clinics in March filed a brief with the state Supreme Court requesting that the court block Kline's subpoena (Kaiser Daily Reproductive Health Report, 9/6). Arguments Rucker said that each of the 90 records might contain evidence of more than one felony, including criminal failure to report child abuse or rape and illegal abortions performed by the clinic. Under Kansas law, any girl under 16 years old who is impregnated by an adult is considered to have been raped, and physicians are required to report any suspicion that a patient has been abused physically, emotionally or sexually. In addition, physicians are prohibited from performing abortions on fetuses after 22 weeks' gestation unless the fetus would not survive or the pregnancy, if continued, would jeopardize the woman's health (Kansas City Star, 9/9). Lee Thompson, the attorney who argued for the clinics, said Kline had not shown evidence of why the medical records are necessary for the investigation. He also argued that the subpoena is a violation of privacy because the records contain detailed personal information, according to the Lawrence Journal-World. Comments Rucker said that while "documented evidence of child rape, incest or other sexual felonies existed within a number of records," the clinics also are targets of the investigation (Rothschild, Lawrence Journal-World, 9/9). Thompson said, "Both clinics categorically deny having committed any felonies," adding, "Today was the first time in this proceeding, either before the district court or in the papers, that allegation has been made." However, Rucker said, "This is a criminal investigation. We cannot depend on the good-faith redaction of records by those being investigated" (Ertelt,, 9/8). Under questioning from Justice Carol Beier, Rucker conceded that Kline had only subpoenaed records for investigation of failure to report child abuse from clinics that provide abortions and had not sought information from anyone else required to report abuse, such as teachers and other health care professionals (Lawrence Journal-World, 9/9). PPKMM CEO Peter Brownlie said, "This attorney general has been very clear that he was out to get abortion providers. But it's never been stated before like it was today" (Kansas City Star, 9/9). Kline in a statement said, "The legal process is working appropriately. It is important once again to state that information about women who received abortion services will never be made public by the lower court or my office and the women and children are not under any type of legal or other liability" (Topeka Capital-Journal, 9/9). Medical Records Privacy Issue Some privacy experts say the case is a "classic showdown of two competing social interests: medical privacy and law enforcement," the Kansas City Star reports. Law enforcement can access confidential medical files if they are relevant to an investigation and cannot be obtained otherwise, according to the Star. Kline has said his investigation is no different than others involving medical files, except that it has to do with abortion. He also has accused the clinics of being hypocritical about keeping medical records private because both of them have posted waivers on their Web sites allowing the use of patient information for fundraising purposes. However, the clinics denied using patient records for fundraising. Officials at Women's Health Care Services said they had put the waiver online by mistake, and Comprehensive Health spokesperson Laura Norris said the facility is legally required to list the waivers even if they do not use the records for fundraising (Klepper, Kansas City Star, 9/8). "That fundraising issue is bogus," Brownlie said, adding, "We don't have fundraisers outside that we turn anything over to. We do it with staff." The clinics also say that Kline's motivation for obtaining the records is to discourage women from seeking abortions (Hanna, AP/Kansas City Star, 9/7). Contempt Allegations The court also heard arguments from attorneys on both sides of the case about allegations made by the clinics that Kline had violated a gag order that had kept most of the records of the case under seal (Hanna, AP/Kansas City Star, 9/8). The family planning clinics in May accused Kline of violating the gag order when he gave interviews, held news conferences and appeared on national television news programs to discuss the investigation. The state Supreme Court in March lifted the gag order, which had been imposed since October 2004, at the request of the clinics. According to spokespeople for the two clinics, Kline violated the gag order before it was lifted (Kaiser Daily Reproductive Health Report, 9/6). The court could rule on the case as soon as Oct. 28 (AP/Kansas City Star, 9/8). Posted on Sun, Sep. 11, 2005 M O R E N E W S F R O M • Abortion Fight over records is about abortion - and Kline's re-election JOHN HANNA Associated Press TOPEKA, Kan. - Partisans fighting over Attorney General Phill Kline's pursuit of abortion clinic records have burned up a good deal of time portraying it as a battle over something other than abortion. Kline's fellow abortion opponents have emphasized Kline's stated desire to go after predators who sexually abuse young girls. County prosecutors who've sided with Kline have said he's also fighting to preserve their ability to investigate crime. The clinics, operated in Wichita by Dr. George Tiller and in Overland Park by Planned Parenthood of Kansas and Mid-Missouri, argue the sanctity of patients' medical records is at stake. If Kline prevails, no one's medical records may be private, they contend. But an hour's worth of arguments last week before the Kansas Supreme Court and the spin surrounding them only served to emphasize that abortion is the issue. Kline is aggressively pursuing the clinics. Eric Rucker, his chief deputy, told the Supreme Court he believes each record contains evidence of multiple crimes on their part - which would amount to several hundred misdemeanors and felonies. In turn, the clinics have ratcheted up their never-quite-abandoned campaign to end Kline's political career, attempting to persuade Kansans that he's an extremist. Kline's efforts have brought him attention outside Kansas. Planned Parenthood's national organization has weighed in, suggesting Kline is part of a larger "anti-choice" agenda because the group faces similar legal battles in Indiana and Ohio. Interestingly enough - and perhaps not coincidentally - in each of the three states, Planned Parenthood officials have accused their antagonists of conducting a "fishing expedition." Last year, at Kline's request, a Shawnee County judge subpoenaed the medical records of 90 women and girls who'd had abortions. The judge also outlined a procedure in which a doctor or doctors designated by Kline would make recommendations on what information the judge should allow the attorney general to see. The clinics went to the Supreme Court, which could rule by Oct. 28. They've asked the justices to block the subpoenas or at least narrow them. The battle has its roots in older antagonisms. For example, in 1998, legislators enacted new restrictions on late-term abortions, with some of them arguing that Tiller had turned Kansas into a Mecca for such procedures. Within three weeks of the law taking effect, Tiller faced accusations that he had violated it. The state Board of Healing Arts investigated, but declined to take disciplinary action. Kline's predecessor, Carla Stovall, who supported abortion rights, refused to initiate another investigation, saying anti-abortion activists had no evidence of wrongdoing. Abortion opponents have long believed Tiller, Planned Parenthood and abortion doctors routinely flout state laws, protected by political friends in key positions. Kline's election allowed their sins to be exposed, or so the argument goes. "They want to defeat Phill Kline," said Mary Kay Culp, executive director of Kansans for Life, the state's largest anti-abortion group. "Then they would be able to walk around with no fear that anyone is ever going to enforce those laws. If not Phill Kline, then who?" Kline argues that denying him access to the clinics' records would permit the target of an investigation to dictate what information reaches investigators. Eventually, even a President Nixon is compelled by law to turn over his incriminating Watergate tapes. But abortion rights activists have long cast abortion opponents as zealots who'll use any tactic, no matter how morally suspect, if it restricts access to the procedure. A bill to specify minimum health and safety standards for clinics? It's designed to make regulation so onerous that clinics go out of business, they say. Allegations of wrongdoing? They're statements you hear routinely from people out to destroy Tiller and other abortion doctors, they contend. As for Kline's investigation, "We are the target because we perform abortions," said Lee Thompson, a Wichita attorney and former federal prosecutor who represented the clinics before the Supreme Court. All parties involved in the case - and their allies - are playing to an audience beyond the courts, of course. That accounts for how the fight has been portrayed. Some Kansans question Kline's motives in investigating abortion clinics, but who can oppose tracking down predators? Other Kansans suspect that fighting Kline is a good way to keep incriminating evidence from coming to light, but who wants their medical records open to the scrutiny of strangers? However, the fight is about how abortion is regulated in Kansas, and the battle will continue with next year's elections, regardless of how the Supreme Court rules.

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