Why Kansas Planned Parenthood lost abortion info weblink fight

12/11/2014 11:00

 by Kathy Ostrowski
As reported last Friday, Planned Parenthood of Kansas & Mid Missouri dropped the last of a three-part legal challenge to informed consent provisions of the 2013 Pro-life Protections Act. The Kansas Attorney General's office issued a short statement today confirming the lawsuit had been dismissed.



In the "late Friday news dump"-the traditional method for circumventing news coverage of yet another failed abortion challenge-the first takeaway was that  there'd been a settlement.


After the news cycle was mostly finished on Friday, the Associated Press updated an earlier story to include that Elise Higgins, PPKMM spokeswoman, had said, "We voluntarily dismissed the case, and there was no settlement." In addition, Laura McQuade, PPKMM president & CEO, stated, "We made the decision to focus our resources on expanding access to care for our patients in 2015."
This famous "refocus our resources" line conveniently glosses over the truth that PPKMM was in the losing legal position and knew it.
Let's remind ourselves of PPKMM's typical bluster when they filed suit. Their June 20, 2013 press release huffed and puffed with outrage. The headline read, "Planned Parenthood Challenges Requirement that it Publicly Endorse State's Anti-Abortion Ideology" and here were some talking points:
  • "Overreaching Law Undermines Doctor-Patient Relationship, Threatens Freedom of Speech for All Kansans"
  • "Governor [Sam] Brownback's attempt to again inject politics into the relationship between a woman and her doctor will not stand."
  • "vital state services are being slashed...while $759,000 [thus far] in taxpayer money [is spent to] defend anti-abortion bills"

Seems pretty extreme, if they could be believed. But what was the actual law they opposed?


Basically, it was an update to informational materials that Kansas enacted in 1997, following the U.S. Supreme Court's 1992 Casey ruling recognizing the state's right to provide "objective, nonjudgmental, and scientifically accurate" information to women considering an abortion. PPKMM's suit was brought on three objections:
  1. the section of state pre-abortion materials that reads,"the abortion will terminate the life of a whole, separate, unique, living human being,"
  2. the section of state pre-abortion materials that includes a short paragraph about the unborn child's pain-capability at 22 weeks gestation, and
  3. the requirement that a live link to pre-natal sonography (part of the state's informed consent website) be positioned on the homepage of the clinic website.
The first two objections were quickly dropped within weeks, as they had been part of state materials in use for several years by all Kansas abortion clinics.


PPKMM's resistance to placing a state weblink on their homepage, however, continued for well over another year, until the Friday before the big hearing was scheduled.

So why not battle it out in court? I think they knew they'd lose, and a court win for the state would have serious ramifications, i.e., it would propel similar pro-life protective laws in other states.


The fact is that case law upholds the right of government to regulate commerce. In the interest of consumer protection, the government already mandates warnings on toys, cigarette packs and takeoff instructions for airplane passengers. The list goes on. The required abortion clinic link for at issue is commercial regulation, not interference with free speech.


Planned Parenthood is a business. PPKMM admitted its primary business is abortion. The state of Kansas' legal brief argued that the required link was "sensible commercial-disclosure requirements" aimed at "ensuring a decision that is mature and informed."


Crucially, the state demolished PPKMM's key defense - that they ALREADY had the link elsewhere on the website and that (horrors!) non-abortion clients would see the link if it were on the website home page.


In response the state wrote:
"Links...that are planted deeper in the company's website either will be missed or only will be seen by women once they have committed to going forward with the abortion procedure.  The homepage requirement aims to have the materials available while a woman is considering the question, 'What should I do?'-not merely, 'What do I need to bring to my abortion appointment?'"

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