The most sweeping anti-choice bill in the nation, a 68 page monstrosity currently being considered by the Kansas House Federal and State Affairs Committee, is about to become the center of showdown over the legitimacy of Kansas University Medical School programs.
The most sweeping anti-choice bill in the nation, a 68-page monstrosity currently being considered by the Kansas House Federal and State Affairs Committee, is in the midst of a showdown. Showdowns have been common in Kansas’ past… we are home to Dodge City after all. But this is a different kind of showdown. It is an abortion showdown.
Showdowns aren’t commonplace in Kansas abortion politics. Under Governor Sam Brownback’s watch, abortion bills are met with a rubber stamp of approval. However, the sweeping nature of this bill with multiple components and complexities has created a potential problem for the largest medical school in Kansas. KU Medical School has an ob-gyn program and this ob-gyn program must offer their medical students abortion training to keep their accreditation.
The 68-page Kansas omni-bus abortion bill states “no health care services provided by any state agency, or any employee of a state agency while acting within the scope of such employee’s employment, shall include abortion.” KU Medical School is a State School. The bill raises a very serious concern for the school. They are concerned enough that they have offered an amendment. From The Lawrence Journal World:
KU has offered an amendment that would exempt medical residents employed by the KU Medical Center from the prohibition who are being trained “in relevant procedures for such purposes in facilities that are not owned and operated by any agency or authority of the state of Kansas.”
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It downright maddening that KU did not come forward and testify in opposition to HB 2598, but it is par for the course in Kansas. Pro-choice lobbyists in the state house, such as Kansas NOW, ACLU of Kansas and Western-Missouri and Planned Parenthood of Kansas and Mid-Missouri, usually find themselves opposing abortion bills on their own. Organizations, physicians and individuals who may have valid reasons to oppose abortion legislation remain silent, due to perceived public and statehouse backlash. Fear is legitimized to a certain degree by the terrorist tactics that are employed by the anti-choice organizations who make Kansas a home base. In a state where the legal practice of medicine can literally get you killed, it casts an ominous presence that even the promise of a “democratic” process cannot dispel.
It is also important to note that there is more than just KU’s accreditation at risk. This legislation also poses a risk to the reputation of the institution itself. The KU Cancer Center has been seeking a designation from the National Cancer Institute (NCI). The NCI just visited Lawrence, Kansas on a site visit to determine the qualifications of the center. Once again from the Lawrence Journal World…
“(the designation) would mean more research funding for cancer, and would be a boon for the local economy and for patients seeking better cancer treatments closer to home.”
As this top state university seeks NCI approval, the state legislature is in pursuit of a bill that would not only put their ob-gyn program at risk, but would require physicians to state aloud to women seeking abortions that their abortion will increase their risk of breast cancer, even though that claim is false and directly contradicts findings by NCI on the subject.
“In February 2003, the National Cancer Institute (NCI) convened a workshop of over 100 of the world’s leading experts who study pregnancy and breast cancer risk. Workshop participants reviewed existing population-based, clinical, and animal studies on the relationship between pregnancy and breast cancer risk, including studies of induced and spontaneous abortions. They concluded that having an abortion or miscarriage does not increase a woman’s subsequent risk of developing breast cancer.”
Will the Kansas House Federal and State Affairs Committee consider these serious concerns? Will the abortion bill be voted out of committee as is or will it be amended?
Perhaps, it would be in the state’s best interest to kill the bill, to save the state’s reputation. Because, let’s face it… Kansas already has a reputation for being an anti-science state. Doing such damage to the functioning and reputation of a major state school, all in the pursuit of abortion politics does little to improve this reputation.
What kind of parent would be interested in sinking almost $50,000 a year in tuition at a school that is making headlines for possible loss of accreditation over a high profile abortion fight? Sorta screams “backwards” doesn’t it?
But Kansas abortion foes aren’t used to walking away from a fight, they have always pushed through their legislative agenda, regardless of the cost. So, a good old-fashioned Kansas showdown is expected.
So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.
So far this year, legislators have introduced 1,256 provisions relating to sexual and reproductive health and rights. Of these, 35 percent (445 provisions) sought to restrict access to abortion services. By midyear, 17 states had passed 46 new abortion restrictions.
Including these new restrictions, states have adopted 334 abortion restrictions since 2010, constituting 30 percent of all abortion restrictions enacted by states since the U.S. Supreme Court decision in Roe v. Wade in 1973. However, states have also enacted 22 measures this year designed to expand access to reproductive health services or protect reproductive rights.
Signs of Progress
The first half of the year ended on a high note, with the U.S. Supreme Court handing down the most significant abortion decision in a generation. The Court’s ruling in Whole Woman’s Health v. Hellerstedtstruck down abortion restrictions in Texas requiring abortion facilities in the state to convert to the equivalent of ambulatory surgical centers and mandating that abortion providers have admitting privileges at a local hospital; these two restrictions had greatly diminished access to services throughout the state (see Lessons from Texas: Widespread Consequences of Assaults on Abortion Access). Five other states (Michigan, Missouri, Pennsylvania, Tennessee, and Virginia) have similar facility requirements, and the Texas decision makes it less likely that these laws would be able to withstand judicial scrutiny (see Targeted Regulation of Abortion Providers). Nineteen other states have abortion facility requirements that are less onerous than the ones in Texas; the fate of these laws in the wake of the Court’s decision remains unclear.
Ten states in addition to Texas had adopted hospital admitting privileges requirements. The day after handing down the Texas decision, the Court declined to review lower court decisions that have kept such requirements in Mississippi and Wisconsin from going into effect, and Alabama Gov. Robert Bentley (R) announced that he would not enforce the state’s law. As a result of separate litigation, enforcement of admitting privileges requirements in Kansas, Louisiana, and Oklahoma is currently blocked. That leaves admitting privileges in effect in Missouri, North Dakota, Tennessee and Utah; as with facility requirements, the Texas decision will clearly make it harder for these laws to survive if challenged.
More broadly, the Court’s decision clarified the legal standard for evaluating abortion restrictions. In its 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court had said that abortion restrictions could not impose an undue burden on a woman seeking to terminate her pregnancy. In Whole Woman’s Health, the Court stressed the importance of using evidence to evaluate the extent to which an abortion restriction imposes a burden on women, and made clear that a restriction’s burdens cannot outweigh its benefits, an analysis that will give the Texas decision a reach well beyond the specific restrictions at issue in the case.
As important as the Whole Woman’s Health decision is and will be going forward, it is far from the only good news so far this year. Legislators in 19 states introduced a bevy of measures aimed at expanding insurance coverage for contraceptive services. In 13 of these states, the proposed measures seek to bolster the existing federal contraceptive coverage requirement by, for example, requiring coverage of all U.S. Food and Drug Administration approved methods and banning the use of techniques such as medical management and prior authorization, through which insurers may limit coverage. But some proposals go further and plow new ground by mandating coverage of sterilization (generally for both men and women), allowing a woman to obtain an extended supply of her contraceptive method (generally up to 12 months), and/or requiring that insurance cover over-the-counter contraceptive methods. By July 1, both Maryland and Vermont had enacted comprehensive measures, and similar legislation was pending before Illinois Gov. Bruce Rauner (R). And, in early July, Hawaii Gov. David Ige (D) signed a measure into law allowing women to obtain a year’s supply of their contraceptive method.
But the Assault Continues
Even as these positive developments unfolded, the long-standing assault on sexual and reproductive health and rights continued apace. Much of this attention focused on the release a year ago of a string of deceptively edited videos designed to discredit Planned Parenthood. The campaign these videos spawned initially focused on defunding Planned Parenthood and has grown into an effort to defund family planning providers more broadly, especially those who have any connection to abortion services. Since last July, 24 states have moved to restrict eligibility for funding in several ways:
Seventeen states have moved to limit family planning providers’ eligibility for reimbursement under Medicaid, the program that accounts for about three-fourths of all public dollars spent on family planning. In some cases, states have tried to exclude Planned Parenthood entirely from such funding. These attacks have come via both administrative and legislative means. For instance, the Florida legislature included a defunding provision in an omnibus abortion bill passed in March. As the controversy grew, the Centers for Medicare and Medicaid Services, the federal agency that administers Medicaid, sent a letter to state officials reiterating that federal law prohibits them from discriminating against family planning providers because they either offer abortion services or are affiliated with an abortion provider (see CMS Provides New Clarity For Family Planning Under Medicaid). Most of these state attempts have been blocked through legal challenges. However, a funding ban went into effect in Mississippi on July 1, and similar measures are awaiting implementation in three other states.
Fourteen states have moved to restrict family planning funds controlled by the state, with laws enacted in four states. The law in Kansas limits funding to publicly run programs, while the law in Louisiana bars funding to providers who are associated with abortion services. A law enacted in Wisconsin directs the state to apply for federal Title X funding and specifies that if this funding is obtained, it may not be distributed to family planning providers affiliated with abortion services. (In 2015, New Hampshire moved to deny Title X funds to Planned Parenthood affiliates; the state reversed the decision in 2016.) Finally, the budget adopted in Michigan reenacts a provision that bars the allocation of family planning funds to organizations associated with abortion. Notably, however, Virginia Gov. Terry McAuliffe (D) vetoed a similar measure.
Ten states have attempted to bar family planning providers’ eligibility for related funding, including monies for sexually transmitted infection testing and treatment, prevention of interpersonal violence, and prevention of breast and cervical cancer. In three of these states, the bans are the result of legislative action; in Utah, the ban resulted from action by the governor. Such a ban is in effect in North Carolina; the Louisiana measure is set to go into effect in August. Implementation of bans in Ohio and Utah has been blocked as a result of legal action.
The first half of 2016 was also noteworthy for a raft of attempts to ban some or all abortions. These measures fell into four distinct categories:
South Carolina and North Dakota both enacted measures banning abortion at or beyond 20 weeks post-fertilization, which is equivalent to 22 weeks after the woman’s last menstrual period. This brings to 16 the number of states with these laws in effect (see State Policies on Later Abortions).
Indiana and Louisiana adopted provisions banning abortions under specific circumstances. The Louisiana law banned abortions at or after 20 weeks post-fertilization in cases of diagnosed genetic anomaly; the law is slated to go into effect on August 1. Indiana adopted a groundbreaking measure to ban abortion for purposes of race or sex selection, in cases of a genetic anomaly, or because of the fetus’ “color, national origin, or ancestry”; enforcement of the measure is blocked pending the outcome of a legal challenge.
In addition, 14 states (Alaska, Arizona, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maryland, South Carolina, South Dakota, Tennessee and Utah) enacted other types of abortion restrictions during the first half of the year, including measures to impose or extend waiting periods, restrict access to medication abortion, and establish regulations on abortion clinics.
Zohra Ansari-Thomas, Olivia Cappello, and Lizamarie Mohammed all contributed to this analysis.
The actions of the "Human Capital" project have certainly had a number of ramifications, including triggering a string of efforts to defund Planned Parenthood and stoking violence against abortion providers. But for those behind the project, it may prove to be more legal trouble than it was worth.
After 30 months of effort, anti-choice activist David Daleiden claimed to have definitive proof that Planned Parenthood was in the grisly business of harvesting fetal “body parts” and profiting from their sale. This operation, which Daleiden dubbed the “Human Capital” project, was going to be what finally shut down the behemoth reproductive health-care provider. Conservative websites galore gloated that it would be the final nail in Big Abortion’s coffin.
On July 14, Daleiden released his first video, igniting a firestorm across social media. More than five months have now passed. The actions of the Human Capital project have certainly had a number of ramifications, including triggering a string of efforts to defund Planned Parenthood and stoking violence against abortion providers. But—in part because of these consequences—for those behind the project, it may prove to be more legal trouble than it was worth.
In Daleiden’s footage, actors posing as officers of a fake tissue procurement company he created called BioMax appear to be haggling with top Planned Parenthood officials regarding the cost of purchasing fetal tissue—or, as Daleiden put it, “baby parts.”
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There’s nothing illegal about fetal tissue donation programs. The law permits recouping reasonable costs associated with its transport, processing, preservation, quality control, and storage. And nothing in the videos demonstrated that Planned Parenthood was doing otherwise. But because they were heavily edited to make it look like Planned Parenthood officials are using the profits from fetal tissue to buy Lamborghinis and drink expensive wine—and because when it comes to abortion rights, sense and logic are often discarded in favor of inflammatory rhetoric—the videos immediately went viral. The hashtag #PPSellsBabyParts trended on Twitter for days. Lawmakers on a state and federal level rushed to attempt to defund Planned Parenthood, with senators most recently voting to do so last Thursday night as part of an Obamacare repeal. In addition, Planned Parenthood announced that it would no longer accept reimbursement for tissue donation.
As the scandal drags on, however, not a shred of evidence has been produced to suggest that Planned Parenthood broke any state or federal laws in connection with its fetal tissue donation programs.
None of the states that began investigations into Planned Parenthood have found any suggestion of nefarious activity. Federal lawmakers haven’t had much luck, either, despite multiple hearings conducted by different congressional committees. Though House Republicansannounced in early October that they would be forming a Benghazi-like special committee to continue an investigation into Planned Parenthood, any possibility that the organization will be found to be in violation of policies regarding fetal tissue donation seems to be flickering out.
What remains, then, are questions about whether or not David Daleiden himself and the organizations he created—CMP and BioMax Procurement Services, the fake tissue procurement company—broke federal and state laws in connection with their crusade against Planned Parenthood, and who coordinated with Daleiden to perpetrate this alleged fraud.
These questions have been teed up in federal court in San Francisco, where a discovery battle has been raging between the National Abortion Federation (NAF) and Daleiden for several months.
“Discovery” is the process in litigation whereby parties to a lawsuit have to, essentially, lay their cards on the table and turn over information that the other side might need to support their claims or defense. And in the lawsuit that NAF filed against CMP, discovery is the process that could unravel a conspiracy involving multiple players all acting in concert to take down Planned Parenthood. Such players may include anti-choice extremists connected to groups like Live Action and Operation Rescue, in addition to some of the anti-choice politicians who jumped at the opportunity to hold congressional hearings and form investigative committees about Planned Parenthood’s supposed dastardly deeds.
But NAF’s lawsuit is about more than CMP’s cynical effort to undermine rights by attacking one of the largest providers of reproductive health care. It is also about NAF’s members—Planned Parenthood affiliates and independent providers who battle incredible odds just to be able to provide a legal health-care service, and the professional association that takes seriously its job of providing a safe space where those providers can meet without fear of harassment.
As outlined in painstaking detail in NAF’s complaint, these providers, many of whom are under constant threat of domestic anti-choice terrorism, often rely on NAF to maintain a shroud of secrecy over its meetings and events so that these providers can feel safe there.
The necessity for such security measures has become obvious in the wake of Daleiden’s scheming. According to NAF court filings, reported incidents of harassment against Planned Parenthood clinics increased ninefold in July, as compared to June. Reported incidents of harassment were even more numerous in August. And in late November, Robert Lewis Dear Jr. was arrested for killing three people and wounding nine others at a Planned Parenthood clinic in Colorado Springs. “No more baby parts,” is what he reportedly said when interviewed after his capture.
Indeed, in September, the FBI warned that there would be “an uptick in attacks on reproductive health care facilities.” As reported by CBS, investigators have tied that uptick directly to CMP’s smear campaign.
So when CMP published footage accusing Planned Parenthood and other NAF members of trafficking in the sale of black-market “fetal body parts,” NAF set about stopping CMP from releasing any more videos that might prove dangerous for its members.
Thus far, NAF’s efforts have been successful.
Within weeks of the first video release, NAF filed a lawsuit in federal court against CMP, BioMax, David Daleiden, Troy Newman (the founder of radical anti-choice extremist group Operation Rescue), and a number of thus far unidentified alleged other parties. Among other civil and criminal allegations, the lawsuit alleges a conspiracy to defraud NAF, perpetrated for the purpose of intimidating and harassing abortion care providers.
Days after NAF filed its lawsuit, it won a temporary restraining order (TRO) blocking CMP from releasing additional footage or other materials that NAF alleges CMP fraudulently acquired at NAF meetings. The judge who issued the temporary restraining order, William Orrick, also ordered CMP and Daleiden to provide responses to NAF’s discovery requests: testimony, documents, and other evidence that NAF needs in order to prove its case that the temporary restraining order should be converted into a preliminary injunction continuing to block the video release.
The most important information sought by NAF is probably the video recordings themselves, many of which were surreptitiously recorded at private NAF events in violation of the explicit nondisclosure agreement that CMP members were required to sign before they could gain entrance into NAF’s annual meetings in 2014 and 2015. The confidentiality agreements are one piece of an extensive security protocol that NAF put in place to protect attendees from anti-choice terrorism.
Daleiden and CMP maintain that the TRO and any preliminary injunction that the court might issue constitutes “prior restraint,” or pre-publication censorship, in violation of the First Amendment. Daleiden believes that the confidentiality agreement that he signed is invalid because in his mind, NAF is an accomplice in Planned Parenthood’s baby parts trafficking scheme.
NAF has countered, and thus far Judge Orrick seems to agree, that First Amendment rights can be waived by contract, which is exactly what Daleiden did. And considering that no federal or state agency has found Planned Parenthood guilty of anything, Daleiden’s continued insistence that he’s an investigative journalist on a crusade to expose the illegal sale of aborted fetal tissue has begun to ring rather hollow.
If the only reason NAF was suing CMP and Daleiden was to make sure that no more video footage containing NAF’s sensitive information is released, Daleiden might be able to rest easy. Although his exposé has fallen apart, leaving a trail of anti-choice violence and tragic destruction in its wake, he and his cohorts might have been able to escape any criminal and civil liability by choosing to not publish any more videos.
But no such luck for him. NAF wants more than just the video footage.
NAF wants to know exactly how Daleiden and CMP perpetrated the operation: who was involved, who infiltrated NAF’s meetings, who funded the project, and who received reports on CMP’s activities. Daleiden and CMP have been desperately trying to avoid providing that information to NAF, which raises questions about what they are trying to hide or who they are trying to protect.
CMP and Daleiden have tried several gambits in their attempts to thwart NAF’s effort to obtain discovery, including pleading the Fifth Amendment as a blanket objection to the information requests. Judge Orrick has swatted them down at every turn, ordering for them to release the information.
Somewhere in those documents is information that CMP and Daleiden would prefer remain undisclosed, including the identity of CMP’s donors and the names of politicians, if any, with whom CMP may have colluded in its effort to take down Planned Parenthood, or who knew about the CMP operation months before the first video was published.
Also contained in the testimony and documents that CMP and Daleiden have been fighting to keep secret are the names of Daleiden’s associates and accomplices—the individuals who infiltrated NAF’s annual meetings under false pretenses. That information may lead to more juicy revelations about which, if any, anti-choice politicians, front groups, or political action committees can be tied to CMP’s smear campaign.
Rep. Trent Franks (R-AZ) admitted that he had first seen the video about a month before it was released. When asked why he did nothing about it at the time, he said, “The hope was to have as much information as possible so that the authorities could be notified effectively before the media.”
Rep. Tim Murphy (R-PA), who is a member of the House Pro-Life Caucus and chairman of the Energy and Commerce subcommittee that is investigating the videos, said in a press conference that he had seen the footage weeks prior to its release. After the press conference, CQ Roll Call asked Rep. Murphy why he had waited to mention the video’s existence. After fumbling for an answer, Murphy ended the interview, asked that he not be quoted, and said, “This interview didn’t happen.”
This in and of itself has raised some eyebrows: The fervor with which these politicians have decried the murder of “babies” and the “harvesting” of their “parts” would suggest that as soon as they became aware of Planned Parenthood committing such horrors in facilities around the country, they would have sprung into action.
If these politicians actively coordinated with Daleiden and CMP, who may have violated numerous federal and state laws, including creating fake identification and secret videotaping, they may not want their identities revealed in connection with NAF’s lawsuit. But NAF and its attorneys have been determined to ferret them out.
And they may have finally gotten their chance. After months of stalling, CMP and Daleiden were ordered to provide to NAF the identities of the “handful of supporters” that were “intimately involved in the planning and funding of the Center’s alleged conspiracy.” On Saturday evening, after their appeal was rejected by the Ninth Circuit and then the Supreme Court, CMP and Daleiden finally complied, according to sources at NAF. The information they gave is under protective order. The court may decide it should be public, but has not yet.
Given the ongoing troubles Daleiden and CMP face in federal court, it’s hard not to conclude that the Human Capital project may have been more trouble for them than it was worth.
Thus far, 11 videos have been released, and while they have riled up anti-choice advocates, so far, no government agency has been able to make any accusation against Planned Parenthood stick. Moreover, public opinion about Planned Parenthood actually improved after CMP began publishing its heavily edited videos.
Evidence suggests that even if CMP and Daleiden can manage to avoid being permanently blocked from releasing any more video footage recorded at NAF meetings, the footage won’t be the end of Planned Parenthood as they had hoped.
Despite the TRO, additional footage found its way on to the Internet thanks to Internet troll and disgraced blogger Chuck C. Johnson, and notorious hacker Andrew “Weev” Auernheimer. Johnson first claimed that the leak came from Congress, but then changed his story and claimed he received the footage from an anonymous person with the user name “patriotgeist.”
But those leaks don’t seem to be advancing the Human Capital project’s agenda, at least not with the current presidential administration in office. Earlier this month, the Senate, after multiple attempts, managed to pass a bill repealing the Affordable Care Act and defunding Planned Parenthood, but that will almost certainly be vetoed by President Obama. And each state that Planned Parenthood has sued after those states cut off the health-care organization’s funding has been ordered to reinstate the funding.
So ultimately, what was the point of this project? To inflame those who already hate Planned Parenthood? To rile up gullible people who think despite all evidence to the contrary, that Planned Parenthood is murdering babies for parts? If so, mission accomplished. But I imagine Daleiden had bigger hopes for this project—like destroying Planned Parenthood altogether. Thus far, those hopes are not panning out. And instead, Daleiden and others involved with CMP could face major consequences, including jail time.
All that remains to be seen is what Republican operatives and politicians, if any, Daleiden worked with to perpetrate this deception.
We’ll have to wait and see when those names are made public.