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The Planned Parenthood clinic in Overland Park

One for the books

Abortion | With a 107-count criminal complaint, Planned Parenthood and one of the nation's toughest laws on abortion face landmark test

Issue: "Elephant in the room," Nov. 3, 2007

How can an attorney general exonerate a group while a district attorney files a 107-count criminal complaint against the same group, when both attorneys examined the same set of evidence? That's the question some Kansans are asking since Johnson County District Attorney Phill Kline on Oct. 15 filed a 107-count criminal complaint against Planned Parenthood of Kansas and Mid-Missouri (PPKM).

The charges are based on name-redacted patient records Kline obtained by court order in 2006 while serving as Kansas attorney general. The complaint lists one felony charge-"making a false information" (23 counts)-and three misdemeanor charges: failure to maintain required health records (26 counts); failure to determine fetal viability (29 counts); and unlawful late-term abortion (29 counts).

Based on the patient records, Kline in 2006 had filed separate charges against both Planned Parenthood and late-term abortion specialist George Tiller in 2006. But those charges-and Kline's pursuit of patient records-became campaign fodder for attorney Paul Morrison, who ran against Kline for attorney general. Though all identifying information was redacted from the records in question, Morrison made hay of the issue of "patient privacy" and defeated Kline last November. Kline was appointed Johnson County district attorney. After taking over the state office, Morrison exonerated Planned Parenthood.

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In light of Kline's new charges, three Kansas Republicans on Oct. 22 sent a letter by courier to Morrison asking why: "It is well documented that just four months earlier you examined some of the same evidence [as Kline] and announced that Planned Parenthood had not violated any laws," wrote state representatives Rob Olson, Benjamin B. Hodge, and S. Mike Kiegerl. "Our constituents are questioning how your office found no violations and other legal entities found many. Can you help us explain this disparity?"

According to Kansas law, "no person shall perform or induce an abortion when the fetus is viable," unless that person is a doctor and has a documented referral from a second doctor who is not "legally or financially affiliated" with the abortion-performing doctor. Both physicians must determine that the abortion is necessary to save the mother's life, or that continuing the pregnancy will cause "a substantial and irreversible impairment of a major bodily function of the pregnant woman."

Kline's complaint alleges that PPKM neither determined viability nor established medical necessity in the cases of 29 women on whom it performed abortions between March and October 2003. Each of the viability-and unlawful-abortion counts in Kline's complaint lists the date an abortion occurred, along with a file number corresponding to an individual patient's medical record.

PPKM CEO Peter Brownlie told reporters that the clinic in question, located in Overland Park, did not perform any abortions past 22 weeks gestation. But according to the PPKM website, the clinic performs abortions from "22 to 23.4 weeks," under "conscious sedation" at a cost of $2,185-plus $100 if the woman requires a Rhogam injection.

The most serious charge against PPKM is 23 felony counts of "making a false information." In plain language, Kline's complaint alleges that when the court ordered PPKM to provide Kline with subpoenaed patient records in 2006, PPKM intentionally created false reports and presented them as truthful data on which the government could rely.

Brownlie called the charges a "baseless" and "outrageous" political attack. But after reviewing the evidence, Johnson County District Court Judge James Vano on Oct. 16 found "probable cause" for the matter to proceed to trial. He issued a summons for PPKM to appear in court on Nov. 16.

American Life League staff attorney Andrew Flusche said the case may mark the first time a Planned Parenthood affiliate has had to appear in court to answer criminal charges. While the group has been the subject of numerous civil lawsuits in the past, including personal injury claims, "we aren't aware of any other criminal charges that have been filed against Planned Parenthood," Flusche said. He added that since stakes in the case are high, a jury trial is likely: Each of the 23 felony counts carries a maximum fine of $100,000.

Throughout his battle to obtain PPKM records, the press pilloried Kline as a mean-spirited anti-abortion crusader out to destroy the lives of women. Planned Parenthood and Kansas pro-abortion groups have "spent two years trying to shoot the messenger instead of dealing with the substance of the charges," said Mary Culp, director of Kansans for Life.

Flusche points out that a judge agreed with Kline's evidence that existing law had been violated. "You can't just go into court and say, 'I'm Phill Kline and I want to file a complaint.' You have to have something to back it up, evidence that would compel a judge to make the defendants appear and defend themselves."

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