Topeka The Kansas Supreme Court’s ruling in a legal dispute over subpoenas could determine whether a criminal case against a suburban Kansas City abortion clinic goes forward, the prosecutor said Wednesday.
Johnson County District Attorney Steve Howe made his comment after the court heard arguments from one of Howe’s assistants and an attorney for the clinic, operated by Planned Parenthood in Overland Park. The court did not say how quickly it would rule.
The dispute involves subpoenas issued by Phill Kline, Howe’s predecessor as district attorney, to four potential witnesses over records sought for a hearing to determine whether the case goes to trial. The clinic faces 107 charges, including 23 felonies, accusing it of falsifying records and performing illegal late-term abortions, which it denies.
Last year, a Johnson County district judge quashed the subpoenas and the district attorney’s office appealed. The criminal case remains on hold.
Howe acknowledged that if the court rules against his office, it might not have enough evidence to go to trial. He said he hasn’t made a decision yet on pursuing the case further for that reason.
“Upon the ruling by the Supreme Court, we’ll be evaluating the case and making a decision on how to proceed,” he said.
Pedro Irigonegaray, a Topeka attorney representing the clinic, also said the Supreme Court’s ruling will be crucial.
“Without the evidence, they cannot proceed,” he said after the arguments.
Groups on both sides of the abortion debate have watched the case closely because of Kline’s ties to it. There’s also been an intense debate over whether patients’ privacy is in jeopardy.
Kline, an anti-abortion Republican, served as Kansas attorney general in 2003-07 and Johnson County district attorney in 2007-08. But he was not present for Wednesday’s arguments.
As attorney general Kline began investigating abortion providers under the supervision of Shawnee County District Judge Richard Anderson. Eventually, Kline obtained access, through Anderson, to edited copies of records from patient files at Planned Parenthood’s clinic.
Kline lost his 2006 bid for re-election as attorney general but became Johnson County’s prosecutor immediately afterward. He continued his investigation of the clinic, using evidence that he had forwarded to Johnson County.
Assistant District Attorney Steven Obermeier told the court Wednesday that the allegations of falsifying documents involve discrepancies between reports filed by the clinic with the state and copies of the same records later provided to Anderson during Kline’s investigation.
Even before Kline filed his criminal case in October 2007, Planned Parenthood filed a lawsuit against him with the Supreme Court, hoping to force him to turn over all his evidence to the attorney general’s office, held by an abortion rights Democrat.
While Planned Parenthood’s lawsuit was pending with the Supreme Court, Kline subpoenaed Anderson, as well as an attorney who had been appointed to review patient records and two state health officials with oversight of abortion reports.
The court told Anderson he couldn’t testify, and that was one reason the judge presiding in the criminal case quashed the subpoenas. Planned Parenthood and the state health department also argued that Kansas law allows only the attorney general and the state board regulating physicians to have access to abortion reports filed with the state.
The Supreme Court ruled on Planned Parenthood’s lawsuit in December, declining to order Kline to turn over his evidence to the attorney general, though the court’s majority did criticize Kline’s conduct. Anderson’s status as a witness — and the four subpoenas — remained in limbo.