Kansas resists revealing how abortion clinic rules were developed

August 28, 2011
Kansas resists revealing how abortion clinic rules were developed
By Brad Cooper | McClatchy Newspapers

KANSAS CITY, Mo. — The state of Kansas is withholding details about how it developed new rules for abortion clinics.

Lawyers for the Kansas Department of Health and Environment and the attorney general want to prevent two abortion clinics from learning how the rules were written, and the rationale behind them, according to their court filings.

They are asking a judge to limit the scope of what is shared with the clinics' lawyers to prevent broad requests that don't lead to relevant evidence, the court documents say.

The state also has denied open-records requests from The Kansas City Star and The Associated Press, which asked for documents that could have shed light on the drafting of the rules.

"They're using every procedure available to prevent us from doing any discovery to find out the steps they took in enacting these regulations," said Bonnie Scott Jones, one of the lawyers for the abortion clinics.

Jones represents Herbert Hodes and his daughter, who run an obstetrics and gynecology clinic in Overland Park. They, along with a Kansas City, Kan., abortion clinic, challenged the new rules in federal court in June.

The abortion providers wanted to question Kansas Attorney General Derek Schmidt and Health and Environment Secretary Robert Moser about the new rules, which started July 1. They want to know what steps were taken in developing the rules and who was involved in researching and writing them.

They also are asking for records, including any documented communications about the rules involving the governor and his staff or the anti-abortion groups Kansans for Life and Operation Rescue.

Representatives of both groups said they didn't try to influence the development of the temporary regulations.

The state is seeking to delay any discovery until the final rules are adopted. Its lawyers argue that the "real" constitutional issues will arise from the final rules, since the temporary regulations have already been blocked by a federal judge.

The temporary rules expire Oct. 29, and Kansas is in the process of making the rules permanent.

State lawyers said the agencies and their staff are protected by absolute legislative immunity, which shields them not only from liability but also from any inquiry into how the rules were developed.

They argue that legislative immunity frees them of "burdensome, intrusive, expensive and potentially harassing discovery."

"Although parties should have some leeway in discovery, discovery should not be used as a fishing expedition," the state argued in its pleadings.

Representatives of the attorney general and the state health department declined to comment.

The rules were among a series of new abortion restrictions that the Kansas Legislature passed and Gov. Sam Brownback signed into law this year.

David Achtenberg, an expert in civil procedure in civil rights actions at the University of Missouri-Kansas City School of Law, said the state is taking "an aggressive position" by applying legislative immunity to state agencies and their staffers.

Jones, the attorney for the doctors, said the information is important to proving that the state is trying impose significant obstacles to women seeking an abortion.

She also said the information is needed to document that the state violated physicians' due-process rights as it rushed to impose the new rules.

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