ABORTION
The spontaneous or artificially induced expulsion of an embryo or fetus. As used in legal context, the term usually refers to induced abortion.
Abortion Clinics Challenge Kansas Subpoena for Abortion Medical Records
In 2004, Kansas Attorney General Phill Kline was granted a court order to subpoena medical records from two Kansas abortion clinics that had performed late-term abortions in 2003 (later than the 22nd week of gestation) and/or abortions on girls younger than 15. The request involved the records of some 90 women and young girls.
Shawnee County Judge Richard D. Anderson issued the subpoena, following a grand jury investigation and subsequent finding of probable cause that some abortion providers had violated state law. The court also issued a gag order prohibiting the disclosure of specific information sought under the subpoena. However, the attorney general publicly stated that he was seeking evidence of child rape and illegal abortions performed after 22 weeks of pregnancy.
The two abortion clinics refused to comply. The Women's Health Care Services of Wichita, run by George Tiller, was one of only three clinics in the nation that performed so-called partial birth abortions. (Tiller, who had been the subject of numerous public demonstrations outside his clinic over the years, had contributed $150,000 through political action committees to oppose the election of Kline as attorney general.) The other named entity was a Planned Parenthood facility in Overland Park.
In early 2005, the two clinics, supported by Planned Parenthood, filed briefs with the Kansas Supreme Court requesting injunctive relief from the lower court's subpoena order. The subpoena asked for the names, medical histories, sexual histories, birth-control practices, and notes from the physical examinations of all women seeking abortions beyond 22 weeks gestation and/or girls under the age of 15. Calling Kline's request a "fishing expedition," the petition cited both privacy rights and the doctor-patient privilege as grounds for the request.
Kline was quick to respond. In the state's brief filed with the court, he reminded the parties that a judicial finding of probable cause had been secured prior to the issuance of the order. He further explained that the subpoena involved medical records being turned over to the court—not to the media, lawyers, or the public at large. Upon receipt of the requested records, the court contemplated a procedure in which an independent medical expert would review the records to determine the viability of each aborted fetus and whether there was objective medical evidence to justify the late-term abortions.
As to the records of the young girls, Kline stated:
When a 10-, 11-, or 12-year-old child is pregnant, under Kansas law that child has been raped, and as the state's chief law enforcement official it is my obligation to investigate child rape in order to protect Kansas children. There are two things that child predators want; access to children, and secrecy. As attorney
general, I'm bound and determined not to give them either.
According to state records, 78 girls younger than age 15 received abortions in Kansas in 2003.
The Kansas subpoena was the strongest yet among states taking action against illegal late-term abortions. Arizona requires medical providers to surrender ultrasound scans to outside medical contractors for review. South Carolina permits state authorities to photocopy medical records. Indiana clinics, like those in Kansas, faced a similar inquiry from state Attorney General Steve Carter, who was similarly challenged in court by Planned Parenthood. In June 2005, Indiana Superior Court Judge Kenneth Johnson again denied Planned Parenthood's petition for relief and ordered the abortion clinics to turn over their records to Carter's Medical Fraud Control Unit. An Indiana Court of Appeals decision in that matter was still pending at press time, as was with the case in Kansas.
These cases differed from those involving former U.S. Attorney General JOHN ASHCROFT, who attempted to subpoena abortion records in defense of challenges to the Partial Birth Abortion Ban Act of 2003, Pub. L. No. 108-105, 117 Stat. 1201. Three courts found the law unconstitutional because (and different from the Kansas and Indiana laws) the federal law failed to provide any exception for such late-term abortions if a woman's health were at stake. See, e.g., Nat'l Abortion Fed'n v. Ashcroft, No. 03-CV-8695 (S.D.N.Y. Aug. 26, 2004).
In the Kansas matter, the Kansas Supreme Court lifted the gag order imposed by the district court, at which time more details on the matter became available to the public at large. The court announced in June 2005 that it would schedule oral arguments in the matter for September 2005.
Fourth Circuit Finds State Support for Anti-Abortion License Plates to Violate the First Amendment
In January 2005, the U.S. SUPREME COURT declined a request for a writ of certiorari to review a case involving the question of whether the issuance of anti-abortion license plates by the state of South Carolina violated the free speech clause of the FIRST AMENDMENT to the U.S. Constitution. The Court allowed a decision from the Fourth Circuit Court of Appeals, which held that the statute was unconstitutional, to stand.
In 2001, the South Carolina General Assembly enacted a law that required the state's Department of Public Safety (DPS) to issue specialized license plates bearing the words "Choose Life" to vehicle owners who were interested. Applicants who wished to receive these plates were required to pay a $70 fee, and the revenue from these fees benefited local pregnancy programs.
In September 2001, two plaintiffs filed an action that challenged the legislation in the U.S. District Court for the District of South Carolina in Charleston. The first plaintiff, Renee Carter, said that she would like to purchase a license plate supporting a woman's right to choose whether to have an abortion. The second plaintiff was Planned Parenthood of South Carolina, Inc., which provided first-trimester abortions, among other services. The defendants in the suit were the state officials who administered the license program, including B. Boykin Rose, the director of the South Carolina DPS. Planned Parenthood v. Rose, 236 F. Supp. 2d 564 (D.S.C. 2002). Although a separate South Carolina statute allows nonprofit organizations to apply for license plates that promote their groups, South Carolina legislators did not offer plates with a message that advocated abortion rights.
The plaintiffs made several arguments to assert that the program was unconstitutional. The plaintiffs argued that the statute constituted viewpoint discrimination "by placing an unconstitutional condition on the exercise of their constitutional rights." (Planned Parenthood v. Rose). The plaintiffs also argued that the statute placed an undue burden on patients' rights to choose an abortion and that the act violated the plaintiffs' rights to equal protection and due process under the FOURTEENTH AMENDMENT to the U.S. Constitution.
U.S. District Judge Patrick Michael Duffy granted a preliminary injunction in November 2001, enjoining the enforcement of the statute. Both parties submitted motions for summary judgment on the merits of the case, and the district court heard oral arguments on these motions in November 2002. In December 2002, the court issued an opinion granting the plaintiffs' motion. The court determined, among other issues, that the state's issuance of 'Choose Life' license plates was viewpoint discrimination on the part of the government. The court noted that any form of viewpoint discrimination is presumptively impermissible and that the state had failed to demonstrate a compelling government interest in such discrimination. Accordingly, the court held that the statute was void.
The state appealed the decision to the Fourth Circuit Court of Appeals, where a three-judge panel heard the case. Although the panel agreed unanimously to affirm the district court's decision, each judge wrote a separate opinion when the decision was handed down on March 22, 2004. Planned Parenthood of S.C., Inc. v. Rose, 361 F.3d 786, 795 (4th Cir. 2003). Judge M. Blane Michael, who announced the court's judgment, found that the state could not advocate one viewpoint to the exclusion of opposing views. "By granting access to the license plate forum only to those who share its viewpoint, South Carolina has provided pro-life supporters with an instrument for expressing their position and has distorted the specialty license plate forum in favor of one message, the pro-life message," he wrote.
After the Fourth Circuit declined to rehear the decision en banc, the state in September 2004 filed a petition for a writ of certiorari. The Supreme Court denied the petition without comment on January 24, 2005. After the Court's announcement, abortion-rights advocates cheered the decision. According to Gloria Feldt, president of Planned Parenthood Federation of America, "Free speech does not mean muzzling opposing points of view."
The Court's refusal to hear the decision left some issues related to the case unresolved. Both the district court and the Fourth Circuit Court determined that Planned Parenthood had standing to bring the suit, notwithstanding the state's argument that Planned Parenthood had not suffered an injury. This conclusion contradicts a decision from the Fifth Circuit Court of Appeals, which held that state taxpayers and planned parenthood organizations lacked the standing to challenge a Louisiana statute that created a "Choose Life" license plate program. Henderson v. Stalder, 287 F.3d 374 (5th Cir. 2002).
At least eleven states allow drivers to order "Choose Life" plates, including Alabama, Arkansas, Connecticut, Florida, Hawaii, Louisiana, Maryland, Mississippi, Montana, Oklahoma, and Tennessee. The Fourth Circuit covers the states of Maryland, North Carolina, South Carolina, Virginia, and West Virginia, while the Fifth Circuit covers Texas, Louisiana, and Mississippi. Thus, according to some analysts, the controversies surrounding these licenses plates will likely continue.
