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Kansas Prosecutor ‘Fishingâ€TM for Underage Sex, Abortions

by Kari Lydersen

Under the guise of defending the young and unborn, Kansas’ attorney general is snooping around the medical records of girls and women, trolling for potential suspects in what critics describe as a personal crusade.

Mar. 12, 2005 – Critics say Kansas Attorney General Phill Kline had that truism in mind when he such an investigation to explain subpoenas demanding the medical records of 90 women who have had abortions at two Kansas clinics.

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But reproductive rights groups interpreted the subpoenas as part of Kline’s well-publicized efforts to undermine abortion rights. They said that while they support the need to investigate and prosecute sexual abuse of minors or women, they view Kline’s subpoenas as a "fishing expedition" aimed at intimidating abortion providers and women by violating their privacy.

The situation came to light after the two clinics that had been subpoenaed filed a brief with the Kansas Supreme Court in their appeal of a lower court decision denying them exemptions from revealing their records to investigators.

Kline’s office did not return calls for comment, but according to documents from the office, the investigation -- which began several months ago -- is aimed at looking into suspected incidences of statutory rape of minors under age sixteen. Kline’s interpretation of Kansas law considers any sexual activity involving minors to be nonconsensual and illegal, thus Kline is working under the assumption that any minor obtaining an abortion is a crime victim. He is requesting records of all under-16-year-olds that have obtained abortions.

Kline is working under the assumption that any minor obtaining an abortion is a crime victim.

Though minors who have had abortions have obviously had sex, reproductive rights groups have said that by the same logic Kline should also aggressively investigate all births to underage girls.

In early March, Kline’s office admitted that the criminal investigation is also looking for "criminal late-term abortions" provided to adult women. Kansas outlaws abortion after 22 weeks unless the mother is in danger. This newly revealed area of investigation bolstered reproductive rights groups’ fears that Kline’s subpoenas are part of a larger attack on reproductive rights, especially late-term abortions.

"This sets a dangerous precedent by an attorney general who is well known to be very anti-choice," said Ted Miller, communications director for NARAL Pro-Choice America, a non-profit organization that works to protect reproductive rights and promote access to contraception. "[Kline’s] motives are well known."

A summary of the legal case issued by Kline’s office said the subpoenas are part of "a judicial inquiry started several months ago in which significant amounts of evidence have been produced and provided to the court." It describes one of these suspected crimes as involving a 10-year-old who underwent a late-term abortion after her 22-year-old neighbor allegedly impregnated her.

Though the actual content of the subpoenas is not public, Kline’s office says they have sufficient evidence of crimes to request the records. But abortion rights groups are doubtful.

"He is doing a real fishing expedition without any specific evidence of criminal activity," said Priscilla Smith, US legal program director of the Center for Reproductive Rights (CRR), a nonprofit legal advocacy group that protects reproductive rights. "It’s intimidating the clinics, it’s intimidating women who don’t know if their records will be kept private or not. It’s a real wakeup call and warning for everyone. It’s extreme behavior."

On a related front, the Center for Reproductive Rights is representing social workers, counselors and others in a lawsuit regarding another situation in which Kline is attempting to obtain records containing sexual and medical information about women. In 2003 Kline issued a new interpretation of the state’s child abuse reporting statute requiring doctors, counselors and others to report any knowledge of sexual activity by minors under sixteen, on the grounds that any sexual activity constitutes sexual mistreatment.

"So anyone speaking to her counselor about having sex with her boyfriend or even making out with her boyfriend would have to be reported, even if they’re minors of the same age," Smith commented.

Last summer a US District Court in Kansas granted a preliminary injunction preventing Kline from enforcing his interpretation of the statute until the lawsuit, which is expected to go to trial in December, is resolved. The Center for Reproductive Rights asserts that if this law were enforced, it could have disastrous consequences for teens.

A study published in the Journal of the American Medical Association in 2002 noted that 59 percent of sexually active teen girls said they would stop seeking reproductive health assistance if they knew their parents would be notified, leading reproductive freedom advocates to fear that reporting sexual activity to state authorities could have similar consequences.

"Patients and clients will be unable to obtain necessary medical information without risking a breach of their confidentiality, and this risk will cause some adolescents to delay or forgo obtaining necessary health care at the expense of their health," wrote the Center for Reproductive Rights’ motion for a preliminary injunction in that case.

Reproductive rights groups see Kline’s recent actions in the same vein as former US Attorney General John Ashcroft’s attempt last year to subpoena medical records of thousands of women who had abortions in several states as part of his effort to defend the federal bill known as the Partial Birth Abortion Ban Act of 2003, which would have essentially outlawed late-term abortions had three separate courts not struck it down last year. The subpoenas were issued after the Center for Reproductive Rights filed lawsuits in several states challenging the ban.

In a column published on the National Organization for Women web site, NOW president Kim Gandy denounced Kline’s actions and expressed faith in the courts to protect reproductive rights.

"The Kline controversy is just the latest in a series of Bush-emboldened extremist actions by right-wingers," wrote Gandy. "From Florida to Iowa to California and Kansas, we're seeing unprecedented invasion of our privacy for political ends. This search and seizure reflex treats women like terrorists instead of women exercising their constitutional rights. Luckily, the law is on our side (so far) -- Ashcroft lost, and so will Kline."

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The NewStandard ceased publishing on April 27, 2007.

Kari Lydersen is a contributing journalist.

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