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On January 1, 2017, the KHI News Service became part of KCUR public radio’s new initiative, the Kansas News Service. The Kansas News Service will continue to cover health policy news and broaden its scope to include education and politics. All stories produced by the former KHI News Service are archived here. Stories and photos may be republished at no cost with proper attribution and a link back to KHI.org.

Legal fees mount in case challenging Kansas effort to defund Planned Parenthood

By Dan Margolies, HEARTLAND HEALTH MONITOR | October 24, 2016

Legal fees mount in case challenging Kansas effort to defund Planned Parenthood
Photo by Heartland Health Monitor Over a three-month period, Kansas paid private law firms nearly $300,000 to defend against a lawsuit filed by Planned Parenthood over the state's attempt to defund it.

The state of Kansas incurred nearly $300,000 in legal fees in just three months to defend a lawsuit brought by Planned Parenthood challenging the state’s decision to boot the organization from the Medicaid program.

Invoices obtained by KCUR show that outside law firms representing the state billed it $282,477 in legal fees and $2,725 in expenses between May 29 and Aug. 31.

The invoices were provided by the Kansas Department of Health and Environment in response to a Kansas Open Records Act request. KDHE Secretary Susan Mosier is the defendant in the lawsuit, which seeks to overturn her decision in May to block Medicaid payments to Planned Parenthood.

The invoices provided by KDHE did not include billings for September and October. But at the current burn rate of about $100,000 a month, the state is likely to have incurred about $500,000 in legal fees and expenses by now.

Moreover, if Planned Parenthood prevails in the lawsuit, it will be entitled to recover its own legal fees from the state. Those could add up to tens or hundreds of thousands dollars more at a time when the state is facing budget shortfalls.

That’s what happened to Missouri in August, when it was ordered to pay Planned Parenthood $156,000 in legal fees after it lost a court battle over its attempt to revoke Planned Parenthood’s abortion license in Columbia, Missouri.

KDHE did not immediately respond to a request for comment on its legal fees.

Brownback vow

Planned Parenthood of Kansas and Mid-Missouri (now Planned Parenthood Great Plains) sued Mosier in May, one day after her agency notified the organization of KDHE’s decision to end its participation in Medicaid.

KDHE’s decision was expected; in his State of the State address in January, Kansas Gov. Sam Brownback had accused Planned Parenthood of illegally selling “baby body parts” and vowed to strip the organization of state funding.

Brownback was reacting to the release last year of heavily edited undercover videos made by an anti-abortion group showing Planned Parenthood officials in other states discussing the use of fetal tissue for research.

Planned Parenthood has vehemently denied that it sells fetal tissue for profit, and a grand jury in Houston later found no evidence of illegal activity. The Kansas Board of Healing Arts came to a similar conclusion in January about Planned Parenthood of Kansas and Mid-Missouri.

Kansas has actually incurred more than $300,000 in legal fees so far defending Planned Parenthood’s lawsuit. The state Attorney General’s Office briefly defended Mosier and then transferred the case to KDHE’s legal office. In response to a separate Open Records Act request, the AG’s office said it incurred $19,820 in legal fees before its contract with Thompson Ramsdell Qualseth & Warner, a Lawrence law firm that frequently represents Kansas agencies in court, ended May 17.

Laura McQuade, president and CEO of Planned Parenthood Great Plains, said she’s not surprised by the amounts the state has incurred. Over the last 15 years, she said, “the state of Kansas has conducted a very expensive, targeted campaign against one organization, that being Planned Parenthood.”

Separately, the Associated Press reported nearly three years ago that Kansas had paid private law firms more than $1 million to defend anti-abortion laws enacted in the previous three years. That amount included $179,000 in attorneys’ fees and expenses to defend various lawsuits challenging abortion restrictions enacted in 2013.

High-powered law firms

KDHE has been represented in the Planned Parenthood lawsuit by two high-powered Washington, D.C., law firms: Norton Rose Fulbright, a global law firm with 3,800 lawyers on six continents, and Consovoy McCarthy Park, a boutique law firm that includes two lawyers who clerked for U.S. Supreme Court Justice Clarence Thomas and another who clerked for U.S. Supreme Court Justice Samuel Alito.   

Norton Rose billed KDHE $137,314 for 279.25 hours of work between June 1 and July 29, according to its invoices. That equates to an average of nearly $492 per hour.

Consovoy McCarthy billed $145,163 in attorneys’ fees for 197.5 hours of work between May 29 and Aug. 31. That translates into an average of $735 an hour. It also billed $2,695 in expenses.

D.C. lawyers tend to charge higher rates than lawyers in all but a handful of markets across the country. A 2012 law firm partner survey by the legal consulting group Major Lindsey & Africa estimated average billing rates for D.C. lawyers at $662 per hour.

The clock continues to tick in the Planned Parenthood case. In July, U.S. District Judge Julie Robinson blocked Mosier from defunding Planned Parenthood, finding that such a move would probably violate federal law.

Following Robinson’s ruling, Brownback spokeswoman Eileen Hawley said the state intended to press ahead with the case.

“The governor is going to continue the fight to make Kansas a pro-life state,” she said. “You know, this is a preliminary ruling. We need to look at the ruling more closely, but our intent is to move forward with the litigation.”

The case is now before the 10th U.S. Circuit Court of Appeals in Denver after Mosier appealed Robinson’s decision. Mosier is represented on appeal by Consovoy McCarthy and her brief is due Wednesday.

If other court decisions are any indication, Mosier is likely to lose on appeal. About a dozen states have tried to defund Planned Parenthood and in most cases federal courts have blocked their efforts.

Kansas is in the 10th federal circuit, and significantly, the 10th U.S. Circuit Court of Appeals in July granted Planned Parenthood’s motion for a an order blocking the state of Utah from defunding Planned Parenthood.

Kansas’ move to cut off Planned Parenthood came just two weeks after the Obama administration warned all 50 state Medicaid agencies that the provision of abortion services was not grounds for terminating Medicaid funding.

Federal law already prohibits public funding of abortion services, which are separate from Planned Parenthood’s other family planning, wellness and other health services.

— Dan Margolies, editor of the Heartland Health Monitor team, is based at KCUR.