Topeka A lower court must ensure patients' privacy before allowing Atty. Gen. Phill Kline to continue with an investigation into two clinics that provide abortions, the Kansas Supreme Court ordered Friday.
In its unanimous decision, the state's highest court also scolded Kline for his conduct in the case, but stopped short of holding him in contempt.
The dispute attracted national attention between Kline, an ardent opponent of abortion, and abortion rights' advocates.
Shortly after taking office in 2003, Kline initiated a secret inquisition into clinics operated by Dr. George Tiller in Wichita and Planned Parenthood of Kansas and Mid-Missouri in Overland Park.
Shawnee County District Court Judge Richard Anderson, at Kline's urging, issued subpoenas for medical records of 90 women and girls. Kline alleged the records could show instances of illegal late-term abortions and child abuse. The clinics said Kline was on a fishing expedition.
The inquisition became public as the clinics fought the subpoenas, appealing to the state Supreme Court that Kline's attempts, if allowed, would invade patients' privacy and cause women to be afraid in the future to seek legal abortions.
In the unanimous decision Friday, the Supreme Court said a balance was needed between privacy rights and the state's right to pursue criminal investigations.
If Anderson decides the inquisition should continue, he must impose safeguards on the subpoenas for medical records, the court said.
Justice Carol Beier, writing for the court, said the subpoenas for records must be tightly restricted to protect the privacy rights of women.
Women's rights at stake
At stake, Beier said, was the right of a woman to get an abortion, the right to obtain confidential health care and the right to maintain privacy over certain information.
"Only if Judge Anderson is satisfied that the attorney general is on firm legal ground should he permit the inquisition to continue and some version of subpoenas to remain in effect," she wrote.
The decision was hailed by the clinics as a triumph for privacy concerns of women and a rebuke of Kline's anti-abortion agenda.
"This is about protecting medical privacy and the identities of our clients from a politically motivated inquisition," said Peter Brownlie, chief executive officer of Planned Parenthood of Kansas and Mid-Missouri.
"The investigation is but one tactic in the attorney general's long-standing assault on a woman's right to make personal health care decisions," Brownlie said.
Julie Burkhart, executive director of ProKanDo, which is Dr. Tiller's political action committee, said Kline simply wanted to challenge the state abortion law.
"If he really wanted to protect minors, abortion clinics would not be his only focus," Burkhart said.
"Attorney General Kline's true intentions are to halt legal and safe health care delivery services to women across Kansas and the nation. He is attempting to insert his political agenda into our state's judicial system, and it is wrong," she said.
Kline denies allegations
Kline has vigorously denied that his investigation was politically motivated, saying instead that he wanted to investigate the potential sexual assaults of children and allegations of illegal late-term abortions.
He issued a one-sentence statement Friday. "I'm pleased that the District Court subpoenas will now be honored and that the investigation can proceed."
Kline was in Wichita on Friday testifying in a federal case in which he asserts that a Kansas law requiring doctors and other health care providers to report suspected child abuse covers every case involving underage sex.
After testifying in that case, he told reporters on the abortion clinic case: "We have never sought the names of the women. They are under no criminal liability or investigation. Their privacy will be protected."
Anti-abortion groups also rallied to Kline's defense.
Kansans for Life said the decision would allow the district court to acquire the medical records.
"The Attorney General's office can continue prosecuting child rapists and people who would cover up sex crimes with abortion," the group said.
"We are happy the Supreme Court recognizes that Planned Parenthood and George Tiller have no legal standing to stop law enforcement," it said.
The court said if Anderson decides to continue with the investigation, patient-identifying information must be redacted, and the files should be reviewed in private by a lawyer and doctor appointed by the judge.
"The type of information sought by the state here could hardly be more sensitive, or the potential harm to patient privacy posed by disclosure more substantial," Beier noted.
Beier said the court documents show that Anderson said that even if Kline's interpretation of the abortion statute was flawed it shouldn't prevent production of the records.
But the Supreme Court disagreed. "To the extent the inquisition rests on the attorney general's ignorance, disregard, or misinterpretation of the precedent from the United States Supreme Court, subpoenas pursuant to the inquisition cannot be allowed," it said. Anderson's office had no comment.
The clinics also sought to have Kline found in contempt of court for disobeying court orders when he released a portion of a transcript of the secret inquisition and talked about matters in the case during a news conference.
Kline said he did this because the clinics had portrayed his efforts in a negative light.
The Supreme Court said that was no justification for Kline.
"Kline has told this court that he did what he did simply because he believed that he knew best how he should behave, regardless of what this court had ordered, and that his priorities should trump whatever priorities this court set," the court wrote.
Kline was let off the hook, however, because the court said the case was unusual in that it was a public dispute over sealed records.
The court cautioned all sides to be careful in their public statements "which may imperil the privacy of the patients and the law enforcement objectives at the heart of this proceeding."
Here are key events in the records dispute involving Kansas Atty. Gen. Phill Kline and two abortion clinics:
¢Sept. 21, 2004: Shawnee County District Judge Richard Anderson subpoenas the records of 90 patients from two abortion clinics operated by Dr. George Tiller in Wichita and Planned Parenthood of Kansas and Mid-Missouri in Overland Park. He does so as part of a court-supervised investigation by Kline, who says he is investigating rapes with child victims and whether the clinics violated laws restricting abortion.
¢Oct. 8, 2004: The clinics tell Anderson they plan to appeal to the Kansas Supreme Court. He agrees to stay the subpoenas until the higher court rules. The clinics are identified only as "Alpha" and "Beta," because Anderson has issued a gag order to protect patients' privacy. Most of the gag order will stay in place.
¢Feb. 22, 2005: The clinics file a legal brief in their appeal with the Kansas Supreme Court. Two days later, a Wichita Eagle story discloses Kline's previously secret investigation.
¢April 11, 2005: The clinics file a request with the Supreme Court, asking it to hold Kline in contempt for violating the gag order. They claim he violated the order by attaching a transcript of an October 2004 district court hearing to a document he filed with the Supreme Court and holding a news conference afterward.
¢Sept. 8, 2005: The Kansas Supreme Court hears arguments in the case.
¢Sept. 15, 2005: In a filing with the Supreme Court, Kline says he doesn't need the names of women whose records are being subpoenaed.
¢Oct. 18, 2005: Kline discloses that he also is investigating cases in which underage girls had live births, citing 62 of them.
¢Feb. 3, 2006: The Supreme Court refuses to give Kline access to the records but leaves open the possibility he eventually will receive some information. The court sends the case back to Anderson, telling him to reconsider his subpoenas.
Facts by The Associated Press