Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Wednesday, February 8, 2006

Case Law Development: Kansas Supreme Court Slows Attorney General’s Abortion Investigation

The Kansas Supreme Court has temporarily slowed Kansas Attorney General Phil Kline’s investigation into charges of illegal abortions and child rape in that state.  On Friday, a unanimous court ruled that the names and personal information of 90 women and girls must be removed from the records he is seeking from two abortion clinics in order to protect their privacy rights.

The court indicated that the action of the Attorney General possibly infringed three federal constitutional rights.  First, The right to maintain the privacy regarding personal sexual matters.  Second, the constitutional right of a patient to make decisions vital to the patient’s health care without being impaired by unwarranted disclosures of that person’s health.  Third, the fundamental right of a pregnant woman to obtain a lawful abortion without government imposition of an undue burden on that right.

Justice Carol Beier, writing for the court, observed that “The type of information sought by the State here could hardly be more sensitive, or the potential harm to patient privacy posed by disclosure more substantial.”  However, she  agreed with the Attorney General that the state needs to pursue criminal investigations. However, the information may be disclosed “Only if the [trial judge] is satisfied that the attorney general is on firm legal ground can he permit the inquisition to continue and some version of the subpoenas to remain in effect. Then he also must enter a protective order that sets forth at least the following safeguards: (1) Petitioners' counsel must redact patient-identifying information from the files before they are delivered to the judge under seal; (2) the documents should be reviewed initially in camera by a lawyer and a physician or physicians appointed by the court, who can then advise the court if further redactions should be made to eliminate information unrelated to the legitimate purposes of the inquisition.”

“This review should also determine whether any of the files demonstrate nothing more than the existence of a reasonable medical debate about some aspect of the application of the criminal abortion and/or mandatory child abuse reporting statutes, which the attorney general's office has already acknowledged would not constitute a crime. If so, those files should be returned to petitioners; and (3) any remaining redacted files should be turned over to the attorney general.”

The Court also rejected holding the Attorney General in contempt, saying it was giving him “the benefit of the doubt,” although "the actions complained of here might well be characterized as criminal contempt in a different case." The court cautioned "all parties to resist any impulse to further publicize their respective legal positions, which may imperil the privacy of the patients and the law enforcement objectives at the heart of this proceeding." News Source:  Scott Rothschild, Lawrence Journal-World, For the complete news story, please click here (last visited February 8, 2006, reo).  The opinion, Alpha Medical Clinic and Beta Medical Clinic v. Anderson, filed February 3, 2006, may be found here.

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