Olathe A Kansas trial court judge postponed a criminal case against a Planned Parenthood clinic Monday, only days after the disclosure that the state health department's routine document shredding had destroyed copies of abortion reports later needed as evidence.
Prosecutors received a two-week delay for a preliminary hearing scheduled to start Monday so they could determine whether they have enough evidence to go to trial. Abortion opponents have described the case in Johnson County District Court, filed in October 2007 but long delayed by legal disputes, as the first in the nation in which a prosecutor has charged a Planned Parenthood clinic with a crime.
Planned Parenthood officials opposed any delays, but District Judge Stephen Tatum agreed to give prosecutors time to see whether they can put together a case with other evidence. Tatum said the next hearing, Nov. 9, will assess the progress made by Johnson County District Attorney Steve Howe's office.
The Planned Parenthood clinic in the Kansas City suburb of Overland Park faces 107 charges, including 23 felony counts alleging that it falsified documents. The records in question are the clinic's copies of reports about individual abortions performed in 2003, which it was required by law to file with the Kansas Department of Health and Environment.
The health department provided copies to the Kansas attorney general's office in 2004, when it was investigating abortion providers, but KDHE never formally certified its copies as authentic. In 2006, with the investigation still ongoing, Planned Parenthood was forced to turn over abortion patients' medical files to a Shawnee County judge. They contained copies of the same reports.
The clinic has long denied any wrongdoing. In a court filing Friday, it acknowledged "certain idiosyncrasies" in its copies of the reports but said they contained the same data as in the health department's copies.
Peter Brownlie, president and chief executive officer of Planned Parenthood of Kansas and Mid-Missouri, said he doubts much will change in the next two weeks.
"They had no evidence going in, and they'll have no evidence then," he said after the hearing.
Howe's predecessor as Johnson County district attorney, Phill Kline, claimed the clinic failed to maintain the reports as required by law, then created false copies to satisfy the Shawnee County judge in 2006.
Kline is a Republican abortion opponent who gained national attention for investigating providers as Kansas attorney general from 2003 to 2007. He lost his bid for re-election in 2006 but served as Johnson County district attorney from 2007 to 2009, losing the GOP primary in August 2008 to Howe.
Legal challenges surrounding the criminal case remained before the Kansas Supreme Court until October 2010.
In September, Howe subpoenaed the health department's copy of the reports so that they could be compared in court with the documents produced by the clinic. But in a filing last week, Howe's chief deputy, Chris McMullin, disclosed that the health department said its copies had been shredded in 2005.
Abortion opponents were stunned — and immediately suspicious — because the Planned Parenthood records were destroyed during the administration of Gov. Kathleen Sebelius, an abortion rights Democrat who left office in 2009 to become U.S. Health and Human Services secretary. The department is now under the control of Gov. Sam Brownback, a Republican abortion opponent who took office in January.
"This was no routine purging," said Mary Kay Culp, executive director of the anti-abortion group Kansans for Life. "It really does not need be investigated further."
A regulation issued by a state board in 1997 and posted on the Kansas State Historical Society's website says the health department is to destroy paper copies of reports on abortions one year after the end of the year in which they were produced — or shredding in 2005 for a report created in 2003.
Planned Parenthood attorney Pedro Irigonegaray said the health department had no responsibility to "educate" prosecutors about record-shredding policies. He added that the only remedy is for Tatum to dismiss the felony charges and move forward with a preliminary hearing on the remaining 84 misdemeanor charges.
But Howe said health department officials told his office that similar paper reports from the late Dr. George Tiller's clinic in Wichita from 2003 into 2010 had been kept.
Tatum said from the bench that he can't assume KDHE knew in 2005 that a criminal case centered on the records would be filed two years later.
Yet, Tatum also said, "I think we're all surprised that these documents were destroyed in 2005."