TOPEKA — Kansas' highest court on Friday allowed a criminal case against a suburban Kansas City abortion clinic to move ahead but imposed conditions that could hinder prosecution of some charges.
The state Supreme Court weighed in on a legal battle over subpoenas to several witnesses, including a trial court judge who once supervised the investigation of Planned Parenthood's clinic in Overland Park.
Abortion opponents disagreed about what the decision means for the criminal case.
Pedro Irigonegaray, a Topeka attorney representing the clinic, said the ruling was being reviewed.
The clinic is accused of performing illegal late-term abortions and falsifying records, which Planned Parenthood officials deny. The clinic faces 107 counts, including 23 felonies related to the records allegations.
The charges were filed in October 2007 by then-District Attorney Phill Kline, a former Kansas attorney general who received national attention for investigating abortion clinics. The case now rests with District Attorney Steve Howe, who unseated Kline in the GOP primary in 2008.
Howe said he must review the decision before he can say whether the case moves ahead.
Kline, a visiting law professor at Liberty University in Lynchburg, Va., said the court's conditions shouldn't prevent a successful prosecution.
"The case should go forward," Kline said. "It's good that the Supreme Court is finally getting out of the way."
A key issue was whether the district attorney can force the Kansas Department of Health and Environment to produce copies of reports on individual patients' abortions filed by the clinic. Kline had argued that evidence suggested the records in KDHE's files didn't match copies of the same documents produced elsewhere.
But the Supreme Court noted that Kansas' abortion-reporting law says the health department can turn over its copies only to the attorney general or the state board that regulates doctors. The court said the DA's office can't get them — potentially hurting efforts to compare different copies in court.
Justice Carol Beier wrote in the court's decision that the reporting law is "unambiguous" about which officials are entitled to obtain the reports.
"This court cannot delete vital provisions or supply vital omissions in a statute," Beier wrote.
For more than two years, such legal disputes have blocked a preliminary hearing in Johnson County District Court to determine whether there's enough evidence to warrant a trial.
The case is unusual for the length and bitterness of its legal wrangling. After Kline left the Attorney General's Office, his successor closed its investigation of the clinic.
Meanwhile, Kansans for Life is asking voters to oust Beier. The anti-abortion group is upset with past rulings on abortion cases, but its leaders also are frustrated about what they see as the court's delays in handling the Planned Parenthood case.
The group hasn't changed its opinion of Beier and was angry that she wrote the opinion instead of another justice.
"Everybody needs some time to analyze it," said Mary Kay Culp, the group's executive director. "What we fear is that while they're giving us some things, they may not be giving us the things needed to prosecute the case."
A trial judge's status as a potential witness is another unusual twist in the case.
Kline began investigating the clinic as attorney general in 2003. He lost his bid for re-election in 2006 but was appointed by fellow Republicans to fill a vacancy in the District Attorney's Office, where he continued his investigation in 2007.
While attorney general, Kline's investigation was supervised by Shawnee County District Judge Richard Anderson, who became the custodian of 29 patients' files from the clinic, records from KDHE and other documents. Anderson has testified in previous hearings that he questions whether records the clinic produced for him match what KDHE has in its files.
The court said while the issue is "sensitive," Anderson can testify about the investigation he supervised and produce documents provided to him by the clinic in others.
However, the court said he cannot produce material from KDHE's files or testify as to what he remembers about them.
And, the court said, he can't offer opinions about the clinic's potential guilt. Beier said even in such unusual circumstances, a judge should remain "neutral and detached," and not become "a member of the prosecution or defense team."