Politics & Government

Kansas seeks to keep abortion clinic-rule process secret

The state of Kansas is battling to keep from revealing details about how it developed new rules for abortion clinics.

Lawyers for the state health department and attorney general want to prevent two abortion clinics from learning how the rules were crafted as well as the thinking 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 overly broad requests that don't lead to relevant evidence, the court documents say.

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

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

The abortion providers wanted to quiz state Attorney General Derek Schmidt and Health and Environment Secretary Robert Moser about the new rules, which took effect 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 development of the temporary regulations.

State lawyers said the agencies and staff are protected by absolute legislative immunity, which shields them not only from liability but also from an 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 state health department declined to comment.

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

Jones, the attorney for the doctors, said the information is important to proving that the state was 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.

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

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.

Jones said that while it appears the state only wants to put off discovery, it really is trying to avoid any discovery on the temporary rules altogether.

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

Supporters say the rules are important for ensuring the care of women seeking abortions, and they cite the case of a Kansas City, Kan., abortion clinic.

In 2005, the state pulled the medical license of Krishna Rajanna after inspections found that the facility was unclean, including human tissue that was stored on a utility room counter and later in a freezer, state records show.

Critics contend the rules are a poorly disguised attempt to try to legislate abortion clinics out of business.

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