After five tumultuous years, the nation’s first criminal prosecution of Planned Parenthood came to an end Friday when prosecutors dropped the last of the charges against the abortion provider.
Johnson County District Attorney Steve Howe and Kansas Attorney General Derek Schmidt jointly announced they were dismissing the last 32 charges against Planned Parenthood. A four-page statement detailed their reasons.
The decision ends an investigation started by Phill Kline, who began the probe as Kansas attorney general in 2003 and lodged a 107-count criminal complaint in 2007 after he did not win re-election and was appointed Johnson County district attorney.
Kline’s investigations of Planned Parenthood and the late Wichita abortion provider George Tiller, who was shot to death in 2009, snared him in an ethics complaint that could cost him the right to practice law in Kansas, although he now lives and teaches in Virginia.
“This is a good day for women in Kansas,” said Peter Brownlie, president of Planned Parenthood of Kansas and Mid-Missouri.
“We are grateful that the taxpayers and citizens of Kansas are not going to have to waste their precious resources and time on a case that shouldn’t have come in the first place.”
Kline, who lost to Howe in the 2008 Republican primary for district attorney, criticized Howe for not understanding the case.
In a 19-paragraph statement Friday, Kline said he had witnesses and experts who could testify that Planned Parenthood was performing abortions on fetuses that were much later in gestational development than it claimed.
“It is not surprising the district attorney does not understand the charges as, to my knowledge, his office did not contact any of these witnesses ...,” Kline said.
But Planned Parenthood had argued that the case was an abuse of political power. Its lawyer accused Kline and Republican Gov. Sam Brownback of trying to shut down abortion services in Kansas.
“Kline, Brownback and their supporters are extremists who are willing to use any means to accomplish their ends, including misusing the law enforcement and judicial systems at great taxpayer expense,” said Pedro Irigonegaray, counsel for Planned Parenthood.
The misdemeanor charges dropped Friday accused Planned Parenthood of failing to perform viability tests on fetuses and performing illegal late-term abortions in 2003.
They were among the 107 counts, including 23 felonies, that Kline had filed.
Forty-nine charges, including 23 felonies, were dismissed in November, when prosecutors alleged the state had destroyed abortion records that they planned to use as evidence.
Twenty-six other counts were dismissed two weeks ago because they were filed outside the statute of limitations.
“This decision is not politically driven,” Howe said Friday. “It’s nothing but based on the law and the evidence. I refuse to allow politics to play a role in making decisions involving criminal cases.”
The bottom line: Prosecutors didn’t think they could meet their burden of proof.
Under Kansas law at the time, if a fetus is at least 22 weeks old, the procedure is considered a late-term abortion and the provider must determine if the fetus is viable. If it’s viable, the provider must determine the procedure is needed to save the life of the woman or to prevent damage to a major body function.
Planned Parenthood claimed that all fetuses from 22 weeks to 24 weeks in gestational age are not viable under the law.
Prosecutors in Kline’s office argued that the law required Planned Parenthood to make that determination on a case-by-case basis. Howe said, however, that requirement was not included in the law.
Howe noted that determining viability depends primarily on gestational age, which is determined in part by ultrasound.
Contrary to what the law requires, Howe said, there are no other medical exams or tests for determining viability other than those used to determine gestational age.
“The statute does not preclude using gestational age for determination of viability,” Howe said in his statement.
While there may be disagreement over whether more tests are needed to determine viability, Howe said, the U.S. Supreme Court has ruled that a “reasonable medical debate” should not subject someone to criminal prosecution.
Prosecutors then tried determining whether medical research supported Planned Parenthood’s claim that a fetus between 22 and 24 weeks old wasn’t viable.
Under state law at that time, viability was defined as a “reasonable probability” that the child can live indefinitely outside the womb with natural or artificial life-support measures.
After interviewing neonatal specialists, prosecutors found that a fetus at 22 weeks has a mortality rate of 100 percent, which improves to 90 percent at 23 weeks. By 24 weeks, the mortality rate is 70 percent.
But Howe ran into legal problems because “reasonable probability” of survival is not defined in criminal law although it is defined in civil law, especially in malpractice cases.
Couple the “reasonable probability” standard with the evidence provided by medical experts, and prosecutors said they couldn’t meet their burden of proof.
“We put a lot of time and effort and research into this case. It’s an unfortunate conclusion I don’t think is going to satisfy anybody,” Howe said.
Mary Kay Culp, executive director of Kansans for Life, called Howe’s announcement “extremely disappointing.”
“Planned Parenthood will claim dismissal of all charges proves they were innocent, but being found innocent and getting away with something are two completely different things,” Culp said.
Culp pointed out that a new law governing late-term abortions is in place.
The new law, like the old one, restricts abortions at 22 weeks or later, but leaves far less wiggle room for a late-term abortion. Abortions are flatly outlawed at 22 weeks unless the mother’s life is in danger or if there might be substantial and irreversible physical impairment of a major bodily function. Mental health is not a permissible exception.
The case against Planned Parenthood started to crumble last fall when prosecutors said the state destroyed the abortion records needed as evidence in their case, including 23 felony charges that Planned Parenthood falsified pregnancy termination reports.
Prosecutors say the records were shredded in 2005, roughly two years before the charges were filed. The Kansas Department of Health and Environment — then under the direction of former Democratic Gov. Kathleen Sebelius — shredded the records as a “routine” destruction of state documents, court files said
The missing records were critical in establishing the authenticity of records from 2003 that Kline obtained when he investigated Planned Parenthood as attorney general. Planned Parenthood provided copies, but Kline contended those did not match the ones he had.
Prosecutors contended Planned Parenthood had not kept copies of the records for five years, as required by law, and committed a felony by recreating them.
Prosecutors wanted to prove that the records of abortions performed in 2003 that Kline obtained were the same as those that had been filed with the state and different from the alleged copies Planned Parenthood later provided.
But the absence of the state records prompted Howe to dismiss the 49 counts, and that has become a sore spot for abortion opponents.
“I think the most unfortunate thing in the case still remains the problem with the destruction or loss of records on the earlier counts that were dismissed,” said State Rep. Lance Kinzer, a leading abortion opponent in the Legislature.
But Kinzer backed Howe’s decision.
“The bottom line is the district attorney has much greater understanding of the nature and extent of the case that he had in front of him,” Kinzer said. “I have confidence in the district attorney and don’t second-guess what he’s saying.”
Howe said he would have liked to have taken the charges related to the pregnancy termination reports to court.
“I think it would have done us all a lot of good if we were able to litigate that. But you know what? It doesn’t happen.”The Star’s Dawn Bormann contributed to this report.