TOPEKA, Kan. — A state-court judge declined Monday to give a Kansas clinic permission to provide telemedicine abortions.
Shawnee County District Judge Teresa Watson rejected a request from the Trust Women Foundation for an injunction to block the state from subjecting the clinic and its doctors to enforcement of state laws against telemedicine abortions. She did so despite another judge's ruling that no ban can be enforced and a Kansas Supreme Court ruling in April that access to abortion is a "fundamental" right under the state constitution.
The foundation operates a Wichita clinic that in October began providing pregnancy-ending medications to patients who conferred with off-site doctors by webcam. But the clinic stopped Dec. 31, saying it the legal climate was too uncertain, and Julie Burkhart, Trust Women's CEO, said Monday evening that it has no plans to resume the service because of the court order.
"We cannot broaden that access and feel confident that the clinic or the physicians will not be penalized for that," Burkhart said. "If we're putting our physicians or the clinic in jeopardy, we're working against our mission. The mission is to bring access to people."
The Legislature has passed three laws aimed at banning telemedicine abortions since 2011, but all were put in limbo by legal challenges in which Trust Women was not a party. Trust Women filed its own lawsuit in January, saying the local district attorney and the state medical board wouldn't promise in writing that the clinic is allowed to do the abortions.
Mary Kay Culp, executive director of the anti-abortion group Kansans for Life, responded to news of the ruling with, "Good, great, wonderful!" She and other abortion opponents have argued that a ban on telemedicine has been in force for at least several years.
"It's truly justice," she said of Watson's decision.
Watson's decision is the first lower-court ruling on abortion since the state Supreme Court's sweeping ruling protecting abortion rights. The judge acknowledged the high court's decision in her ruling but described as "speculative" Trust Women's claims that its patients would be irreparably harmed if she did not issue the order it sought.
"There is no evidence the challenged laws decrease access to abortion," Watson wrote.
Eighteen other states have laws requiring doctors to be physically present when abortion medications are dispensed, according to groups on both sides of the issue, and an Iowa law has been blocked in court. The Wichita clinic has two doctors who live outside Kansas and can be at the clinic two days a week.
The Kansas attorney general's office had argued that patients aren't harmed if the clinic does not have permission to do telemedicine abortions.
However, during a hearing in May, Burkhart testified that webcam conferences made the doctors available an extra eight to 12 hours a week and sometimes cut patient wait times to less than two hours from six to eight hours. Trust Women also hopes eventually to open a clinic in rural Kansas offering telemedicine abortions.
The clinic also faces a complaint over its past telemedicine abortions filed with the State Board of Healing Arts from the anti-abortion group Kansans for Life.
The board has 15 members. One position is vacant, and the other 14 members were named by anti-abortion Republican governors. Two members' terms expired June 30, giving Democratic Gov. Laura Kelly, an abortion rights supporter who took office in January, a chance to replace them.
Kansas enacted its first telemedicine-abortion ban in 2011, only to see it swept up in a broader lawsuit against multiple restrictions filed by father-daughter doctors who operated a women's health center in the Kansas City-area. Another Shawnee County judge, Franklin Theis, blocked all of the restrictions together.
Theis ruled Dec. 31 that his order on the 2011 restrictions also blocked a 2015 version of the telemedicine-abortion ban. And he declared that a 2018 version was an "air ball" without enforcement provisions. The state has appealed. The Wichita clinic is not a party in that case.
Watson said in her ruling that Trust women's request for an order had added to "a growing procedural backwater" that hindered her ability "to resolve the underlying merits of the telemedicine abortion issue."
Kansans for Life launched its complaint against Trust Women's clinic before Theis' ruling in December and received a notice in April that it had been assigned to an investigator. The Board of Healing Arts regulates the clinic's physicians, while the clinic itself is regulated by the state health department, which is under Kelly's control.
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