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Across the Nation: AG cites Dred Scott in abortion case, backpedals quickly


AG cites Dred Scott in abortion case, backpedals quickly

WICHITA, Kan. — Kansas’ attorney general withdrew on Wednesday a court brief that cites the slavery-era Dred Scott decision to support the state’s position that the Kansas Constitution does not guarantee a right to an abortion.

The reference made in a filing submitted to the Kansas Supreme Court a day earlier does not accurately reflect the state’s position, is not necessary for its legal argument and should not have been made, Attorney General Derek Schmidt said in a statement.

“Neither the State nor its attorneys believe or were arguing that Dred Scott was correctly decided,” he said. “Nonetheless, the reference to that case was obviously inappropriate, and as soon as I became aware of it today, I ordered the State’s brief withdrawn.”

In the infamous Dred Scott decision, the U.S. Supreme Court ruled a black person whose ancestors were sold as slaves could not be a U.S. citizen and therefore had no right to sue. It also ruled in the decision that the federal government could not prohibit slavery in its territories.

“It is a very odd thing, an unusual thing to have people relying on Dred Scott in support of a legal position that was espoused in Dred Scott,” said Richard Levy, a law professor at the University of Kansas.

The state cited the 1857 decision as the Kansas Supreme Court considers whether the state’s constitution guarantees the right to an abortion. The appeal stems from the refusal of the Kansas Court of Appeals to implement the state’s first-in-the-nation ban on a common second-trimester abortion method.

In a split decision, the Court of Appeals said the Kansas Constitution protects abortion rights independently from the U.S. Constitution. If upheld, the ruling would allow state courts to protect a woman’s right to end her pregnancy beyond federal court rulings.

“The unfortunate use of this citation should not distract from the important question the Kansas Supreme Court faces in this case: Whether the Kansas Constitution establishes a state-level right to abortion,” Schmidt said. “The State will continue to argue vigorously that it does not.”

The state used the Dred Scott case to bolster its argument that the Declaration of Independence had no legally binding effect.

Kansas cited the decision in response to an amicus brief filed by the American Civil Liberties Union in support of abortion rights.

Doug Bonney, chief counsel for the ACLU’s Kansas chapter, said the state’s decision to cite the Dred Scott decision was unusual.

“When I saw the table of cases, when I just started scrolling through it, I thought, ‘What? Really?” Bonney said.


Ex-Pennsylvania attorney general out on bail amid appeal

NORRISTOWN, Pa. — Democrat Kathleen Kane burst onto the political scene in Pennsylvania with an enviable array of assets: glamour, charisma and a campaign war chest from her husband’s fortune that topped $2 million for her 2012 run for state attorney general.

She left a courtroom Monday in handcuffs, sentenced to 10 to 23 months in a county jail by a judge who said her ego compelled her to break the law to destroy “perceived enemies.”

Kane, 50, a Scranton native, leaked grand jury documents to embarrass a rival prosecutor and then lied about it under oath. After a two-hour jail stint, she posted $75,000 bail and was released Monday evening while she appeals her conviction.

“This case is about ego — the ego of a politician consumed with her image from Day One,” Montgomery County Judge Wendy Demchick-Alloy said. “This case is about retaliation and revenge against perceived enemies who this defendant … felt had embarrassed her in the press.”

The judge said Kane assumed an “off with your heads” mentality as she ran the state’s top law enforcement agency. She called Kane a political “neophyte” who failed to make the transition from campaigner to public servant after she took office.

Kane, the first woman and first Democrat elected attorney general, was a stay-at-home mother and one-time assistant county prosecutor before the run for statewide office. She became a rising star in the state Democratic Party before her office devolved into turmoil as career prosecutors came and went. With a growing list of enemies, she leaked grand jury documents about a civil rights leader who had been investigated to embarrass the rival prosecutor who ran the probe and declined to bring charges. Kane then lied to the grand jury investigating the leak, the jury found.

“Your children are the ultimate … collateral damage. They are casualties of your actions,” the judge said. “But you did that, not this court.”

Earlier Monday, Kane’s 15-year-old son, Chris, pleaded for leniency while her former deputies described a demoralized office.

“Through a pattern of systemic firings and Nixonian espionage, she created a terror zone in this office,” said Erik Olsen, who is now the chief deputy attorney general.

Kane didn’t testify at the August trial. She was convicted of two felony counts of perjury and seven misdemeanor charges, and resigned the next day.

Montgomery County District Attorney Kevin Steele pushed for jail time Monday, citing the damage to the state’s law enforcement community.


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