TOPEKA | A big part of what's thought to be the nation's first criminal case against a Planned Parenthood clinic collapsed after Kansas prosecutors concluded document shredding by state officials made it too difficult for them to walk jurors through allegations that the clinic falsified reports on patients' abortions.
Two state agencies, during administrations of Democrats who supported abortion rights, destroyed records prosecutors came to see as crucial evidence. Planned Parenthood officials believe the disclosures unfairly overshadowed serious weaknesses in the case against the clinic. Abortion opponents see events as part of the legacy of a persistent nemesis, former Gov. Kathleen Sebelius, now U.S. health and human services secretary.
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The resulting dismissal last week of the most serious charges facing Planned Parenthood's clinic in Overland Park will keep abortion issues roiling in state politics. A new, state-requested investigation will examine whether officials broke any laws in shredding different sets of records in 2005 and 2009.
The clinic still faces 58 misdemeanor charges accusing it of performing illegal abortions and failing to comply with restrictions on late-term procedures, which it denies. But 23 of the 49 charges dismissed last week by District Judge Stephen Tatum were felonies, and all those he counts were tied to allegations the clinic created false copies of reports on individual abortions performed in 2003.
“We are left with no other alternative,” current District Attorney Steve Howe said in seeking the dismissal of the charges.
Kansas law required Planned Parenthood to compile a report on each abortion it performed, send it to the Kansas Department of Health and Environment, and keep a copy in the Overland Park clinic's file. Clinic attorneys have said repeatedly it complied fully.
Then-Kansas Attorney General Phill Kline, a Republican abortion opponent, launched an investigation into abortion providers in 2003, over months after taking office. The following year, with his investigation ongoing and supervised by a Shawnee County judge, he obtained copies of thousands of reports on individual abortions from the state health department.
Sometime in 2005 – Howe's office said in a court filing that the exact timing isn't certain – the health department shredded its copies reports on abortions filed in 2003, including Planned Parenthood's.
State law declares that records of “enduring value” should be stored to allow permanent preservation, but disposing of other, old records promotes “economy and efficiency” in government operations. Planned Parenthood attorneys have noted that a schedule set by state regulations allowed its abortion reports to be shredded.
State Archivist Matt Veatch, who sits on a board setting records policies, said only a small percentage of records are seen as worth preserving permanently, particularly given limited storage space. Speaking generally, he said schedules for destroying records are discretionary, setting a minimum period they must be preserved and allowing an agency to keep documents longer if it wishes.
Irigonegaray said the health department did nothing wrong in destroying old papers on schedule because, “It's housekeeping.”
Planned Parenthood clinic's remained under investigation at the time. Also, Howe said in court last month that some abortion reports, from the late Dr. George Tiller's clinic in Wichita, also under investigation, were preserved into 2010.
The health department's secretary in 2005 was appointed by Sebelius, who left the governor's office in 2009. An HHS spokesman in Washington said in an email last week that Sebelius has “no knowledge” of matters involving the Planned Parenthood case. The health department, citing the criminal case, declined a request from The Associated Press last month to release a memo to Howe about the shredding.
In 2006, with Kline's investigation of providers still ongoing, the clinic produced yet another set of the same reports to the Shawnee County judge supervising the attorney general's work.
Kline lost his bid for re-election as attorney general in 2006. But he became Johnson County district attorney, and just before leaving the state office in January 2007, he had copies of records from his investigation transferred to Johnson County, including the abortion reports from Planned Parenthood.
Those copies – described by Howe in court as only partial copies of copies – remain in Johnson County.
In 2007, Kline saw physical differences between those copies and the ones produced by Planned Parenthood in 2006. The clinic acknowledged “certain idiosyncrasies,” later describing them as differences in handwriting, but conveying the exact same information. Irigonegaray said clinic staff simply made copies by hand in 2003.
Court records have shown since that Kline's successor as attorney general, Paul Morrison, an abortion rights Democrat, was aware of the issue. Morrison concluded the Planned Parenthood clinic had committed no wrongdoing, saying so in a letter to its officials that he made public. In subsequent legal disputes between Kline and the clinic, the attorney general's office would side with the clinic.
Kline concluded the clinic had created new copies of the 2003 abortion reports to cover up a failure to maintain them as required by law. He filed his criminal case in Johnson County in October 2007, expecting eventually to compare the set of reports produced by Planned Parenthood in 2006 with another set in the state's possession, to highlight the differences.
The case would outlast both. Morrison, embroiled in a sex scandal, stepped down in January 2008, and Sebelius appointed Steve Six, then a Douglas County district judge, as Morrison's replacement. Kline left office in January 2009, having lost his 2008 Republican primary to Howe.
Six's handling of abortion matters remained in line with Morrison's. And, in April 2009, Six's office shredded its copies of the Planned Parenthood abortion reports at issue in the criminal case, Howe said in court.
In a letter to the Shawnee County sheriff seeking an investigation of the shredding, current Attorney General Derek Schmidt wrote that “some number” of documents from the investigation of abortion providers had been shredded.
Schmidt, a Republican who unseated Six last year, said he couldn't determine whether the attorney general's office had complied with state law or its own records-retention policy. The AP has filed an open records request for a copy of the policy then in place.
Six has declined comment.
Irigonegaray said if Howe and Schmidt truly wanted to pursue the allegations of falsifying records, Howe's office still could have pushed to use its copies of the abortion reports as evidence.
But abortion rights supporters previously made much of how those same copies were handled after being produced by Kline's staff in his final hours as attorney general and transferred to Johnson County. For example, one investigator kept them and other materials for several weeks in early 2007 in a Rubbermaid container in his dining room.
Howe said he couldn't document the exact chain of custody in enough detail and called the legal hurdles to using his copies as evidence “insurmountable.”
Meanwhile, as the investigation of the shredding and the rest of the Planned Parenthood criminal case move forward, the debate over what happened to the documents will intensify.