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Kansas Supreme Court Selected Opinion Summaries
Alpha Medical Clinic and Beta Medical Clinic et al. v. Hon. Richard Anderson, Judge of the Third Judicial District, et al., Docket 93383
February 3, 2006

Summaries and press releases are prepared by Ron Keefover, Office of Judicial Administration, Kansas Judicial Center, 301 West 10th, Topeka, KS 66612-1507 (785-296-2256), e-mail: keefoverr@kscourts.org.

RE: Appeal No. 93,383: Alpha Medical Clinic and Beta Medical Clinic et al. v. Hon. Richard Anderson, Judge of the Third Judicial District, et al.

Saying three federal constitutional privacy interests are threatened by Attorney General Phill Kline's inquisition subpoenas for patient records from two Kansas abortion clinics, the Supreme Court today unanimously ordered Shawnee County District Judge Richard Anderson to reconsider whether the subpoenas should issue and, if so, to adopt tightly drawn restrictions.

In its opinion in Alpha Medical Clinic et al. v. Anderson et al., the Court also declined the clinics' request to hold the attorney general in contempt of court for alleged violations of an order sealing documents and proceedings related to the inquisition.

Today's rulings came in a lawsuit filed directly with the Supreme Court by the clinics, seeking to quash subpoenas of unredacted patient files for 90 women and girls who obtained abortions at the clinics in 2003.

Justice Carol A. Beier, writing for the Court, said the inquisition focused on "at least allegedly unjustified 'late-term' abortions and possible unreported child abuse." She noted that the attorney general also had suggested crimes other than violations of the criminal abortion and child abuse reporting statutes could be uncovered.

The clinics, she wrote, did not seek to stop the entire investigation but "appear to insist only that their patients' privacy rights must be balanced with the State's compelling need for information relative to the criminal investigation."

The privacy interests at stake in the inquisition are "the right to maintain the privacy of certain information," "the right to obtain confidential health care," and "the fundamental right of a pregnant woman to obtain a lawful abortion without government imposition of an undue burden on that right." The opinion observed that, if the inquisition subpoenas "are not handled sensitively, the fundamental rights of women who may seek abortions in the future could be substantially impaired or the assertion of those rights prevented."

Under today's decision, Judge Anderson must "first evaluate the inquisition and subpoenas in light of what the attorney general has told him regarding his interpretation of the criminal statutes at issue."

If Judge Anderson requires additional information to assess the validity of the inquisition and subpoenas, he is directed to seek the information from the attorney general. The Court held that neither the clinics nor their attorneys are to be included in any hearings held for that purpose.

"Only if Judge Anderson is satisfied that the attorney general is on firm legal ground should he permit the inquisition to continue and some version of the subpoenas to remain in effect," the Court decided. If the subpoenas are reissued, Judge Anderson also must impose at least the following safeguards to protect patient privacy:

  • The clinics' attorneys must be permitted to redact patient-identifying information from the files before they are delivered to the judge under seal;
  • The files should be reviewed initially in private by a lawyer and a physician or physicians appointed by Judge Anderson, who will advise the judge if further redactions should be made to eliminate information unrelated to the "legitimate purposes of the inquisition"; and
  • The initial review also should determine whether any of the files demonstrates "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 already has acknowledged would not constitute a crime."

On the contempt issue, the Court stated it was giving the attorney general "the benefit of the doubt," although "the actions complained of here might well be characterized as criminal contempt in a different case." The opinion 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."