Topeka Defense attorneys are asking a Kansas judge to dismiss the remaining criminal charges against a Planned Parenthood clinic accused of performing illegal abortions, saying the allegations stem merely from differing medical opinions about how such procedures should be handled.
The lawyers representing the suburban Kansas City clinic also argued in previously sealed court documents that nearly half of the 58 remaining criminal charges were filed after a deadline set by Kansas law. The Associated Press obtained copies of the documents Tuesday from the district court in Johnson County after Judge Stephen Tatum unsealed them.
Tatum, the district judge handling the case, dismissed 49 other charges in November at the request of Johnson County District Attorney Steve Howe, including felony counts accusing the clinic in Overland Park of falsifying records. All 107 charges were filed in October 2007 by Howe's predecessor, Phill Kline, a fellow Republican who opposes abortion. Advocates on both sides of the abortion debate believe it was the nation's first criminal case against a Planned Parenthood clinic.
The judge, who has yet to decide whether the case will go to trial, has set a July 11 scheduling hearing. Planned Parenthood attorneys filed multiple requests under seal March 29 to have the remaining charges dismissed, and Tatum allowed them to become public Monday.
"We think we have very powerful legal arguments," Topeka attorney Pedro Irigonegaray, who's representing Planned Parenthood, said Tuesday. "There's plenty to show that there was never anything to it."
Howe declined comment, saying he didn't want to violate past instructions from Tatum and the Kansas Supreme Court for attorneys in the case to limit their comments outside courtrooms.
Kline, now a visiting assistant law professor at Liberty University in Lynchburg, Va., wasn't surprised by Planned Parenthood's attempt to dismiss the remaining charges.
"It's to be expected," he said.
The Planned Parenthood clinic is accused of violating a Kansas law that in 2003 restricted abortions at or after the 22nd week of pregnancy if a doctor determined the fetus was viable, or could survive outside the womb. For each of the 29 abortions, the clinic still faces one misdemeanor charge of not properly examining whether the fetus was viable and one misdemeanor count of performing an illegal late-term abortion.
Defense attorneys argued in their court filings that 26 charges covering 13 abortions before July 2003 were filed beyond a two-year deadline for pursuing charges that was in effect at the time. Legislators changed the deadline, giving prosecutors five years to file charges, but the change didn't take effect until July 2003.
In July 2005, Kline was Kansas attorney general and was locked in a legal dispute with Planned Parenthood and another abortion provider over access to key information in patients' medical records as he investigated providers. Kline didn't gain access until October 2006, just before losing re-election as attorney general. He became Johnson County's district attorney in January 2007 and continued investigating Planned Parenthood.
Attorneys for Planned Parenthood also are trying to block the testimony of a family practice physician and a doctor who provides care for patients with high-risk pregnancies. The two are questioning the methods used to determine that each fetus wasn't viable.
The defense attorneys said Tatum should not allow the testimony because neither performs abortions. The attorneys added that a potential defense witness — a medical school professor who edited a textbook on abortion and serves as chief medical officer for Planned Parenthood's New York City chapter — concluded that the Kansas clinic followed standard medical practices at the time.
In the past, the Kansas Supreme Court has declared that a criminal case against an abortion provider cannot boil down reasonable differences of medical opinion.
"This was simply an attack on women's reproductive health care issues, not based on facts but on political motivations," Irigonegaray said.
Planned Parenthood also argued that it's unfair and unconstitutional under past U.S. Supreme Court decisions to punish providers for making good-faith judgments about a patient's care because others disagree about their decisions.