The fate of a criminal prosecution of Planned Parenthood filed in a Kansas District Court is now in the hands of the Kansas Supreme Court, which heard oral arguments in the case Thursday.

The high court hearing is unusual because the district court case has yet to be tried. Nevertheless, Planned Parenthood attorneys asked the court to decide whether Johnson County DA Phill Kline lawfully obtained evidence - redacted late-term abortion reports - that are key to the case.

Planned Parenthood faces 107 misdemeanor and felony counts for allegedly performing late term abortions and "manufacturing" falsified abortion reports at a clinic it operates in Overland Park.

Kline originally obtained the reports with the authorization of District Court Judge Richard Anderson when he was Attorney General. Anderson's court removed from the records all information relating to patient identity. The records then were transferred to the Johnson County District Attorney’s Office when Kline became DA, again with the authorization of Judge Anderson.

Lawyers for Planned Parenthood demanded the return of the records to the Attorney General’s Office, and asked the Supreme Court to either hold Kline in contempt or to impose other sanctions for improper handling and storage of the records.

The clinic's attorneys said the chain of custody of the reports had been breached during the transfer process, pointing out that the records had been kept in the apartment of a police investigator, where they were stored for several weeks. Although the records contained no personal information, the lawyers said they could have been viewed by either a maintenance man or the investigator’s mother, both of whom had access to the apartment. 

The Attorney General’s Office sided with Planned Parenthood, and also demanded the return of the reports. Deputy Attorney General Michael Leitch likened the records to property such as computers or wall hangings.

“It wasn’t a transfer, it was a taking,” Leitch told justices.

Caleb Stegall, an attorney representing Kline, reiterated that an appropriate judge oversaw the transfer of the reports, and that forcing their return to the defendants in the criminal action would “thwart” the criminal prosecution.

Judge Anderson had experts scrutinize the Planned Parenthood documents and told a pre-trial hearing, "There is evidence of crimes in these records that need to be evaluated." The Supreme Court then put a gag order on Anderson.

Stegall said a district court, not the Supreme Court, would be the proper venue for a criminal defendant to raise questions about the chain of custody.

The Kansas Supreme Court, whose members are appointed by the governor without a confirmation process, has been criticized by legal experts outside Kansas for overstepping its role in the investigation. 

Judge Andrew P. Napolitano, Fox News Senior Judicial Analyst, said the high court's unorthodox activities - including secret hearings, silencing witnesses potentially damaging to Planned Parenthood, and intruding and delaying the legal processes of a case that had not been brought before it - led him to believe that the matter should be taken to a federal court in order to restrain the justices' actions.

Planned Parenthood has been the target of increasing criticism for the way in which it handles its abortion services. In Ohio and Texas the organization faces lawsuits and in California the clinic operator has been accused of fraud. A movement is underway in Congress to withdraw the $300 million the organization receives in taxpayer support every year.

The Kansas case however is seen as the most potentially damaging challenge Planned Parenthood faces.

The Court offered no estimate on when a decision might be forthcoming.

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