TOPEKA — A Johnson County judge on Thursday dismissed 26 misdemeanor charges against an Overland Park Planned Parenthood clinic, honoring a prosecutor’s request to further narrow a criminal case over allegations the clinic performed illegal late-term abortions.
Johnson County District Attorney Steve Howe confirmed Thursday night that District Judge Stephen Tatum signed an order late in the afternoon at Howe’s request. Tatum’s action is noted in online court records, but without any details.
Attorneys for the Planned Parenthood clinic in Overland Park had requested in March to have the same charges dismissed. The clinic’s attorneys argued that the charges – covering 13 abortions in 2003 – were filed beyond a two-year deadline for pursuing charges in effect when the pregnancies were terminated.
“Basically, we don’t dispute their contention,” Howe said.
Howe’s predecessor as district attorney, Phill Kline, filed 107 criminal charges against the clinic in October 2007, including 23 felonies alleging that the clinic also falsified records to help cover up illegal late-term abortions. Groups on both sides of the debate described the case as the first one known in the nation in which a Planned Parenthood clinic faced criminal charges.
But in November, Tatum dismissed the 49 most serious charges, including the felonies, also at Howe’s request. Thirty-two misdemeanor charges remain, covering 16 abortions the clinic performed, also in 2003, but starting in July, when a state law took effect extending the deadline for pursuing charges to five years after an incident.
“It is indeed a tragedy that it has taken this long for these charges to be dismissed,” said Pedro Irigonegaray, a Topeka attorney representing the clinic.
Legal disputes surrounding the case have delayed even a preliminary hearing to determine whether there’s enough evidence against the clinic to warrant a trial.
The clinic still 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. 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.
For the 16 abortions covered by the remaining charges, the clinic faces one misdemeanor count each of not properly examining whether the fetus was viable and one misdemeanor count of performing an illegal late-term abortion. The clinic’s attorneys have said repeatedly it violated no laws.
The charges dismissed Thursday were 13 counts of each misdemeanor, covering abortions occurring before the change in the deadline for pursuing charges.
“It is inconceivable to me to understand how such a high-profile case could be so incompetently handled,” Irigonegaray said.
Kline, now a visiting assistant professor of law at Liberty University in Lynchburg, Va., did not return a telephone message and email late Thursday night seeking comment. Howe declined to comment further.
When that deadline hit for those abortions 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.
Kline became Johnson County’s district attorney in January 2007 and continued investigating Planned Parenthood. He lost the August 2008 Republican primary to Howe.
In November, Tatum dismissed 26 misdemeanor counts accusing the clinic of failing to maintain reports on individual copies of reports on individual abortions as required by law and 23 felony counts of creating false copies of such records when required to produce them in 2006, during Kline’s investigation as attorney general.
Howe said in court that full, clean copies of reports on the same abortions submitted by the clinic to the state at the time of the procedures had been destroyed by the attorney general’s office in April 2009. A follow-up investigation by the Shawnee County sheriff’s office concluded that while other abortion-related files were destroyed in 2009, none of the documents involved the Planned Parenthood case.
But Howe hasn’t backed off his contention that the exact documents needed to pursue those 49 charges were missing.
Last month, Howe acknowledged yet another issue that could endanger the remaining 32 charges. Howe said an expert retained to support those charges – an out-of-state physician and medical school professor of obstetrics and gynecology – had become too ill to serve as a witness.
Tatum has set a scheduling conference in the case for Aug. 20.