Topeka Kansas' highest court on Friday allowed a criminal case against a suburban Kansas City abortion clinic to move ahead but imposed conditions that could hinder prosecution of some charges.
The state Supreme Court's weighed in amid a legal battle over subpoenas to several witnesses, including a trial court judge who once supervised the investigation of Planned Parenthood's clinic in Overland Park.
The clinic is accused of performing illegal late-term abortions and falsifying records, which Planned Parenthood officials strongly deny. The clinic faces 107 counts, including 23 felonies related to the records allegations.
The charges were filed in October 2007 by then-District Attorney Phill Kline, an anti-abortion Republican and former Kansas attorney general who received national attention for investigating abortion clinics. The case now rests with District Attorney Steve Howe, who unseated Kline in the GOP primary in 2008.
A key issue was whether the district attorney can force the Kansas Department of Health and Environment to produce copies of reports on individual patients' abortions filed by the clinic. Kline had argued that evidence suggested the records in KDHE's files didn't match copies of the same documents produced elsewhere.
But the Supreme Court noted that Kansas' abortion-reporting law says the health department can turn over its copies only to the attorney general or the state board that regulates doctors. The court said the DA's office can't get them — potentially hurting efforts to compare different copies in court.
Justice Carol Beier wrote in the court's decision that the reporting law is "unambiguous" about which officials are entitled to obtain the reports.
"This court cannot delete vital provisions or supply vital omissions in a statute," Beier wrote.
For more than two years, such legal disputes have blocked a preliminary hearing in Johnson County District Court to determine whether there's enough evidence to warrant a trial.
A spokeswoman for Howe did not immediately return a telephone message seeking comment about Friday's ruling.
The case is highly unusual for the length and bitterness of its legal wrangling. After Kline left the attorney general's office, his successor closed its investigation of the clinic.
Meanwhile, Kansans for Life is asking voters to oust Beier. The anti-abortion group is upset with past rulings on abortion cases, but its leaders also are frustrated about what they see as the court's delays in handling the Planned Parenthood case.
And a trial judge's status as a potential witness is another unusual twist.
Kline began investigating the clinic as attorney general in 2003. He lost his bid for re-election in 2006 but was appointed by fellow Republicans to fill a vacancy in the district attorney's office, where he continued his investigation in 2007.
While attorney general, Kline's investigation was supervised by Shawnee County District Judge Richard Anderson, who became the custodian of 29 patients' files from the clinic, records from KDHE and other documents. Anderson has testified in previous hearings that he questions whether records the clinic produced for him match what KDHE has in its files.
The court said while the issue is "sensitive," Anderson can testify about investigation he supervised and produce documents provided to him by the clinic in others.
However, the court said he cannot produce material from KDHE's files or testify as to what he remembers about them.
And, the court said, he can't offer opinions about the clinic's potential guilt. Beier said even in such unusual circumstances, judges should remain "neutral and detached," not "a member of the prosecution or defense team."