Federal Judge Temporarily Blocks Kansas From Enforcing New Abortion Laws

KANSAS CITY, Kan. -- A federal judge temporarily blocked Kansas from enforcing new abortion regulations Friday, in a ruling that suggested the state will be challenged to justify its demand that three abortion providers comply with the rules within two weeks of receiving them.

U.S. District Judge Carlos Murguia's injunction will remain in effect until a trial is held in a lawsuit against the state's new licensing process and accompanying health department regulations, which were to have taken effect Friday. The lawsuit involves two providers that wouldn't have been able to continue terminating pregnancies.

The new law requires hospitals, clinics and doctor's offices to obtain an annual license from the Kansas Department of Health and Environment to perform more than five non-emergency abortions in a month. The regulations tell abortion providers what drugs and equipment they must stock and, among other things, establish minimum sizes and acceptable temperatures for procedure and recovery rooms.

Supporters of the law and the regulations believe they'll protect patients from substandard care. But abortion rights supporters see them as deliberately burdensome, designed to prevent clinics and doctor's offices from offering abortions. They also didn't trust the licensing process because Republican Gov. Sam Brownback is a strong abortion opponent, and anti-abortion groups pushed its passage in the GOP-controlled Legislature.

Murguia said evidence presented during a hearing and in court documents showed the providers would "suffer irreparable harm" through the loss of business and patients, and that at least two women currently seeking abortions would be harmed by not being able to go to the provider of their choice. He even questioned whether the state had any evidence at all that could show that the new guidelines were "rationally related" to protecting patients.

He appeared particularly critical of the speed with which the state imposed the rules, saying there's no evidence that the state provided "meaningful notice" of the new requirements. The providers didn't receive an electronic copy of the latest version of the guidelines until June 17 and were told the requirements in them wouldn't be waived.

"The court believes the public interest is best served in preserving the status quo pending the resolution of this case," Murguia said from the bench after a hearing in Kansas City, Kan.

Secretary of Health and Environment Robert Moser, a defendant in the lawsuit, said the department will respect the ruling but called it "narrowly tailored" and promised the department would proceed with its plan to issue yet another version of the rules this fall. Assistant Attorney General Steve Fabert, who argued the state's case, declined to comment about the ruling.

During the hearing, Fabert dismissed the providers' complaints about the time they were given to conform to the new rules, saying they simply wanted to avoid new regulations. Before imposing the rules, the department didn't take public comments, but it plans to do so in September before producing a new version.

"They do not want to comply with the statute -- ever," he said. "We could have given them nine months, and their objections would have been identical."

But Murguia said there's a substantial likelihood that the abortion providers would prevail at trial on their claim that the state violated their right to due legal process.

Among other things, the new regulations would require abortions to be performed in rooms with at least 150 sq. feet of space, excluding fixed cabinets, and that are kept at between 68 and 73 degrees. Each procedure room also must have its own janitor's closet with at least 50 sq. feet. Also, any patient must remain in a recovery room for at least two hours.

The lawsuit was filed earlier this week by Dr. Herbert Hodes and his daughter, Dr. Traci Nauser, who perform abortions and provide other services at the Center for Women's Health in Overland Park, a Kansas City suburb. A second clinic, Aid for Women in Kansas City, was allowed to join the lawsuit. Neither received an abortion license.

The state's third abortion provider, a Planned Parenthood of Kansas and Mid-Missouri clinic in Overland Park, received a license Thursday, and the attorney general's office contends that the license showed the state isn't seeking to shut down abortion providers. But Murguia said the other providers had presented evidence that having only one clinic or office performing abortions wouldn't meet the needs of patients.

Nauser called the ruling "amazing," and afterward, Hodes said, "All we are going to do is take care of women right now."

Nancy Northup, president of the Center for Reproductive Rights, which represented Hodes and Nauser, noted that Murguia's ruling came a day after a federal judge in South Dakota blocked enforcement of that state's new law requiring women seeking abortions to wait three days and undergo counseling designed to discourage them from going through the procedure.

"It is a real pushback on these burdensome unnecessary laws that have been overreaching in an attempt to shut down abortion providers across the country," Northup said.

The licensing law was part of a wave of anti-abortion measures enacted this year in Kansas and other states with new Republican governors or GOP-dominated legislatures. Utah and Virginia also are imposing new regulations on abortion providers, but their rules aren't expected to take effect until next year.

During the hearing, Fabert said the state was trying to make its regulation of the clinics consistent. The Planned Parenthood clinic already is regulated by the department as an ambulatory surgical center, but the other providers fell under less detailed rules for clinics and offices performing surgical procedures, imposed by the state board that licenses doctors.

"We are sincere in our desire to do what we can as far as improving the safety and comprehensiveness of the information women receive ahead of time, said Mary Kay Culp, executive director of the anti-abortion group Kansans for Life.