Charges against Kansas abortion clinic dropped

August 17, 2012 - 8:34 PM

TOPEKA, Kan. (AP) — A Kansas prosecutor on Friday dropped all remaining criminal charges against a Kansas City-area Planned Parenthood clinic accused of performing illegal abortions, ending what was believed to be the first attempt in the U.S. to prosecute a facility affiliated with the group.

Johnson County District Attorney Steve Howe announced that 32 misdemeanor charges against the clinic had been dismissed. Those charges were the last part of a criminal case filed in 2007 by Howe's predecessor. Howe said his decision to end the case came after consulting Kansas Attorney General Derek Schmidt. All three are Republicans.

"It is an unfortunate conclusion that I don't think is going to satisfy anybody, but that is the reality of what we have to deal with today," Howe said during a news conference at his office at the courthouse in Olathe. "But ultimately, the decision should be about the law and the evidence."

The remaining charges dealt with allegations that the clinic had violated a state law that restricted late-term abortions after a fetus was viable, or could survive outside the womb. The clinic was accused of not properly determining whether a fetus was viable, but Howe said "extensive research" by his office led it to conclude the clinic had met the tests spelled out in the law.

Pedro Irigonegaray, a Topeka attorney representing the clinic, praised the decision: "Finally, the truth comes out."

But it frustrated and angered abortion opponents. "Being found innocent and getting away with something are two completely different things," said Mary Kay Culp, executive director of Kansans for Life.

Phill Kline, the prosecutor who filed the charges, said Howe's statements indicated "he doesn't understand the case" and that a prosecutor has broad discretion in deciding whether to prosecute.

"This fact, however, does not make this decision correct but only demonstrates the District Attorney acted out of political fear rather than a sound understanding of the law, the facts or the case," Kline, who was unseated by Howe in an election, said in an email.

The clinic originally faced 107 criminal charges, including 23 felonies accusing it of falsifying copies of reports on abortions it had filed with the state. All of the allegations stemmed from abortions performed by the clinic in Overland Park in 2003. Of those charges, 75 were previously dismissed over the past 10 months for different reasons.

The remaining charges covered 16 abortions in 2003. One count for each procedure alleged that the clinic hadn't properly determined the viability of a fetus, while another count for each said the abortion violated the late-term restrictions.

In 2003, the late-term restrictions applied to abortions at or after the 22nd week of pregnancy if a doctor determined the fetus was viable. In such instances, abortions were limited to saving a woman's life or preventing "substantial and irreversible harm" to "a major bodily function," which could include mental health. Legislators rewrote the law last year so that viability is no longer a factor, only whether a woman's life is in danger or she faces permanent, major damage to her physical health if the pregnancy continues to term.

Howe said mortality rates for babies born prematurely made it more likely than not that the aborted fetuses weren't viable, and the law didn't require other tests for viability.

Legal disputes surrounding the case have delayed even a preliminary hearing to determine whether there was enough evidence against the clinic to warrant a trial. Johnson County District Judge Stephen Tatum had planned to have scheduling hearing Monday.

Kline, a Republican, began investigating abortion providers as Kansas attorney general in 2003. He lost his bid for re-election to the state office in 2006, but then served two years as Johnson County district attorney, losing to Howe in the Republican primary in August 2008.

Planned Parenthood officials and attorneys repeatedly have described the case as politically motivated because Kline opposes abortion.

Kline, now a visiting assistant professor of law at Liberty University in Lynchburg, Va., said evidence of potential wrongdoing — not his politics — drove his investigations. Abortion opponents also have argued that abortion-rights supporters long protected the clinic, including two Democrats who followed Kline in the attorney general's office before Schmidt won it in the 2010 election.

One anti-abortion group, Operation Rescue, had called upon Howe to resign earlier this month, when some other charges in the case were dropped. Troy Newman, the Wichita-based group's president, said Howe "threw the case."

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Associated Press writer Heather Hollingsworth in Olathe, Kan., also contributed to this report.

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Online:

Johnson County District Court: http://courts.jocogov.org/

Johnson County District Attorney: http://da.jocogov.org

Planned Parenthood chapter: http://www.plannedparenthood.org/kansas-mid-missouri/

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