In a tone befitting a pubescent spat, the director of Missouri's Department of Health and Senior Services last week informed the state Attorney General Jay Nixon that she would not be using his services in a lawsuit filed against the state by Planned Parenthood seeking to have a restrictive abortion law declared unconstitutional. It was a highly unusual move, since the attorney general is the state's lawyer, and it is his job to defend the constitutionality of state statutes when they are challenged in court.
"I did not believe I could trust you to defend me and my department vigorously," wrote Jane Drummond, general counsel to Republican Gov. Matt Blunt (son of the House Republican Whip Roy Blunt). "You," Drummond accused the state's chief law enforcement officer, Nixon, who happens to be the Democrat challenging Blunt in Missouri's gubernatorial race next year, "are radically pro-abortion."
In a final talk-to-the-hand flourish, Drummond demanded, "Please have your counsel contact my department related to this case through my new attorneys."
Those new attorneys are with the Alliance Defense Fund (ADF), the radically anti-choice, anti-gay, anti-separation-of-church-and-state legal powerhouse at the forefront of just about every real and imagined battle in the culture wars. Remember the "War on Christmas?" Gov. Blunt helped ADF fight it last year, when he sent a memo to directors of state agencies, telling them they shouldn't fear "official reprisal" for saying "Merry Christmas," and reassuring them that "[t]his holiday season should not give state employees reason to feel as though they must check their religious views at the door of a government building." ADF, which is dedicated to "protecting our heritage of prayer," praised Blunt's action, calling him one of "several highly visible public officials [who] also gave the efforts of ADF even greater momentum."
The abortion law in question is HB 1055, which, among other things, changes the definition of "ambulatory surgical center" to include any clinic that performs five or more abortions a month. It requires those centers to retrofit their facilities to meet the same requirements imposed on facilities performing other surgical procedures, even if the clinic only performs medication-induced abortions. Planned Parenthood of Kansas and Mid-Missouri (PPKM) challenged the law, which was slated to take effect Tuesday, because it would effectively close two clinics for extensive and possibly cost-prohibitive renovations and leave only one abortion clinic in the entire state, in St. Louis. Late Monday, the court granted PPKM's motion for a temporary restraining order, preventing those provisions of the law from taking effect until September 10, when the court will hold another hearing.
Four days before PPKM filed its lawsuit, the Missouri Republican Party signaled the coming politicization of the attorney general's role in the case. Calling for Attorney General Nixon to recuse himself from any prospective suit, the state GOP charged that Blunt's rival "has shown for more than a decade that he is unwilling to stand up in court on behalf of Missourians against Planned Parenthood and other pro-abortion forces." The statement cited an eight-year-old case involving Nixon's reluctance to enforce a ban on state funding of Planned Parenthood.
Never mind that the voters of Missouri elected and reelected Nixon, and that Drummond's boss could be upended by him in the governor's race next year, should Nixon ride a wave of increasingly Democratic sentiment in the state. Never mind that Drummond was appointed by Blunt, whose campaign -- not to mention that of the GOP presidential candidate -- could get an assist from social conservatives for working to put Planned Parenthood out of business. For the GOP, it's Nixon who has politicized the process.
Dale Schowengerdt, one of ADF's attorneys, said that the organization offered its assistance -- free of charge -- to the Department of Health because "we believe Planned Parenthood should not be exempt from common-sense regulations that protect the health and safety of women."
A little eau du Rove, a little essence of Jesus, and voila! The state is now represented by a powerful organization with its own radical agenda. According to its website, "in 1994, God raised up" ADF to counter the American Civil Liberties Union's and Planned Parenthood's "distortion" of the Constitution. As a result of ADF's litigation efforts "the so-called 'wall of separation' ... is slowly starting to crumble." ADF has achieved "significant God-given victories ... as we strive for the day when all life is once again legally defended, protected, and affirmed."
Scott Holtse, a spokesperson for Nixon, who, like Drummond, remains a defendant in his official capacity, seemed half exasperated and half bemused by the shenanigans. Normally the attorney general represents state agencies in litigation against them, and Holtse could think of no other example of when a state agency pushed aside the voters' elected law enforcement official in favor of an outside lawyer -- except when the Department of Natural Resources hired a law firm at which Blunt's sister was an attorney last year. "We're focused on doing our job, which is defending the laws of the state of Missouri," Holtse told the Prospect. "We are not going to be distracted by sideshows."
Drummond's office, meanwhile, says they are letting her missives to Nixon -- which Holtse says reached the media before they landed on his boss's desk -- "speak for themselves." She sent her latest epistle on Monday, the same day that the court granted the temporary restraining order, and in it upbraided Nixon for his "collaboration" with Planned Parenthood and his allegedly shoddy legal work in the case. Drummond was annoyed, for example, that ADF proffered an expert witness (Elizabeth Shadigan, the University of Michigan School of Medicine professor who is a leading proponent of the debunked theory that abortions cause breast cancer), while Nixon did not. ADF's brief, she added, cited 19 cases, but Nixon's brief was "less thorough."
Drummond went on to boast that ADF is providing "truly pro bono service at its best." Too bad that the taxpayers of Missouri are paying a price anyway, regardless of how the court rules in September.
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