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Abortion providers sue Kansas over longstanding waiting period, new medication rule

Abortion Kansas
Posted at 10:28 AM, Jun 07, 2023

TOPEKA, Kan. — Abortion providers sued Kansas on Tuesday over a law enacted this year and existing restrictions, including a decades-old requirement that patients wait 24 hours after first seeing a provider to terminate their pregnancies.

Besides the waiting period, the lawsuit challenges a law set to take effect July 1 that will require providers to tell patients that a medication abortion can be stopped using a regimen that major medical groups have called unproven and potentially dangerous.

The lawsuit, filed in state district court in Johnson County in the Kansas City area, argues that Kansas has created a “Biased Counseling Scheme” designed to discourage patients from getting abortions and to stigmatize patients who terminate their pregnancies. The lawsuit contends that the requirements have become “increasingly absurd and invasive” over time and spread medical misinformation.

Kansas voters in August 2022 decisively affirmed abortion rights, refusing to overturn a state Supreme Court decision three years earlier that declared access to abortion a matter of bodily autonomy and a fundamental right under the state constitution. The providers hope the state courts will invalidate the entire state law that spells out what they must tell patients — in writing — and when, with a single, specific style of type mandated for the forms.

“We thought about the fact that the voters were very clear in the fact that they want providers able to speak directly and honestly to their patients,” said Emily Wales, president and CEO of Planned Parenthood Great Plains, one of the providers filing the lawsuit.

Wales added that the newest restriction caused the providers to look at the state's requirements more broadly: “This addition would really harm patients potentially, so we felt compelled to do something.”

The medication abortion-reversal regimen, touted for more than a decade by abortion opponents, uses doses of a hormone, progesterone, commonly used in attempts to prevent miscarriages. Supporters of the new law — and Kansas’ entire Right to Know Act — argue that they are making sure that patients have the information they need to make informed decisions about ending their pregnancies.

“With today’s lawsuit, the profit-driven abortion industry has launched an unprecedented attack on a woman’s right to informed consent before an abortion is performed on her,” Danielle Underwood, spokesperson for Kansans for Life, the state’s most influential anti-abortion group, said in a statement.

Last year's vote and the 2019 state Supreme Court decision mean that Kansas lawmakers cannot greatly restrict or ban abortion, in sharp contrast to other states with Republican-controlled Legislatures following the U.S. Supreme Court's Dobbs decision against abortion rights in June 2022. The new Kansas law was enacted over the veto of Democratic Gov. Laura Kelly, an abortion rights supporter.

Abortion rights advocates have long viewed the 24-hour waiting period as medically unnecessary and something that either increases patients' travel or forces them to arrange an overnight stay and childcare. They see the issue as even more compelling since the Dobbs decision.

“Providers in Kansas are inundated with a surge of patients traveling from out of state, from states as far as Texas and Mississippi, in search of desperately needed essential health care,” said Alice Wang, an attorney for the Center for Reproductive Rights.

But anti-abortion groups and lawmakers also are likely to be upset about the lawsuit because of the campaign leading up to the August 2022 vote. The measure on the ballot was a proposed amendment to the state constitution that would have declared that it does not grant a right to abortion.

Abortion opponents pitched it as a way to preserve reasonable restrictions. But as written, the Legislature would have gained the power to ban abortion — and that point was emphasized by abortion rights supporters.

Even with the August vote, Underwood said, “Kansans never agreed to give up their basic rights to information, safeguards from a profit-driven industry, and the space and time to change their mind about an abortion they have yet to complete.”

Abortion foes warned repeatedly during last year's campaign that without a change in the state constitution, the state risked having even longstanding restrictions reversed. Parts of the law being challenged — including the 24-hour waiting period — were enacted in 1997.

The lawsuit was filed by the Planned Parenthood affiliate, which operates two clinics in the Kansas City area and one in Wichita; another center offering abortion services in the Kansas City area; its owner and another doctor working there. The defendants are state Attorney General Kris Kobach, a Republican who has vowed to defend state abortion laws; district attorneys in the Kansas City and Wichita areas who would enforce the restrictions; and the top staffer and chairman of the state medical board.

However a district court judge rules, the case is likely eventually to go to the Kansas Supreme Court. The seven justices already are reviewing a ban enacted in 2015 on the most common second-trimester abortion procedure and a 2011 law setting special health and safety regulations for abortion providers. Neither has been enforced.