(Updated to include comments from Kansans for Life, House speaker and the Kansas Catholic Conference)
Abortion providers are challenging a new state law requiring physicians to notify women that their drug-induced abortion can be reversed, using it as a springboard to contest an overall law requiring them to provide women with other information about the procedure.
The lawsuit seeks to immediately block the abortion reversal law before it starts July 1, but it asks a judge to throw out the state’s entire informed-consent law known as the Women’s Right to Know Act.
First enacted in 1997 and amended six times since, the state’s informed-consent law requires physicians who perform abortions to provide information about the procedure to women 24 hours before undergoing an abortion. The 24-hour waiting period could be eliminated if the lawsuit is successful.
Among other things, a physician must inform the woman that she has the right to view the ultrasound image of the fetus and listen to the heartbeat. The physician also must describe the risks related to the abortion procedure.
The lawsuit labels the state’s informed-consent law as a “biased counseling scheme.”
The plaintiffs say doctors are required to provide patients with “inaccurate state-mandated information, including medically unfounded statements that abortion poses a ‘risk of premature birth in future pregnancies’ and a ‘risk of breast cancer.'”
The law “singles out abortion care for medically unnecessary additional regulation that delays and impedes access to abortion, stigmatizes and demeans people seeking abortion, and perpetuates the discriminatory view that pregnant people are uniquely in need of the
state’s paternalistic intervention into their health care,” the lawsuit said.
The lawsuit was brought on behalf obstetricians at an Overland Park health clinic for women and Comprehensive Health of Planned Parenthood Great Plains. While it seeks to invalidate the entire informed-consent law, it focused on the reversal law passed this year.
“Last year, Kansans voted that they wanted abortion access to remain constitutionally protected in their state,” said Nancy Northup, president and CEO of the Center for Reproductive Rights.
“Now politicians have passed a law that would force providers to tell their patients outright falsehoods, piling on to already coercive requirements that make abortion in Kansas harder to access and demean those seeking abortion care,” Northup said in a statement.
The lawsuit points to the 2019 state Supreme Court case, which found that the state constitution provides a right to an abortion. The lawsuit also noted that voters rejected a proposed constitutional amendment that would have reversed that ruling.
The court is being asked to revisit its 2019 abortion decision and is now reviewing the case. There is no indication when the court will rule.
Kansans for Life called the lawsuit an “unprecedented attack on a woman’s right to informed consent before an abortion is performed on her.”
“Not only are they seeking to remove access to information that many women have deemed essential to this life-altering decision, they’re aggressively working to speed up the decision-making process, seemingly forcing women into abortion without discussion of alternatives,” said KFL spokesperson Danielle Underwood.
Senate President Ty Masterson also expressed his displeasure with the legal action filed in Johnson County District Court.
“It is sadly not surprising, but nonetheless very telling, that Planned Parenthood is suing to stop even the ‘Women’s Right to Know Act’, which ensures that critical medical information is provided to women,” Masterson said in a statement.
The lawsuit argues that the Legislature added to state law “harmful new requirements for physicians to disseminate to their patients no less than five times, in four separate ways.”
It says they are being required to spread “the false message that it may be possible to reverse the intended effects of a medication abortion.”
“This additional layer of regulation was piled on at a time when providers are struggling to meet the demands of an unprecedented surge of patients seeking abortion after the federal right to abortion was rescinded,” the lawsuit says.
The lawsuit says the new law – enacted over Gov. Laura Kelly’s veto – violates state constitutional rights by singling out abortion for a unique regulation and violates the state constitutional right to free speech.
The lawsuit also says the law is unconstitutional because it discriminates against women for exercising their fundamental right to an abortion under state law and because it perpetuates sex–based stereotypes that motherhood is the appropriate role for women.
The lawsuit says the informed-consent law is a “biased counseling scheme” that has become “increasingly absurd and invasive” since it was first passed in 1997.
The law has been “amended multiple times to add ever more restrictive requirements that push it further and further afield from ensuring informed consent, and increasingly, into the realm of the absurd,” the lawsuit said.
It imposes “numerous onerous and logistically challenging mandatory delays; adding so many irrelevant, stigmatizing, offensive, and sometimes false statements to the mandatory disclosures that plaintiffs must post a billboard in their office to house them all…”
House Speaker Dan Hawkins ripped into the lawsuit, especially for targeting the reversal measure passed this year.
“It’s shocking that Planned Parenthood would want to deny vulnerable women crucial medical information about a hormone that’s been used clinically by physicians for years,” Hawkins said in a statement.
“This legislation ensures that women in this situation are provided with all medical information and it’s appalling that Planned Parenthood would attempt to block this information to satisfy their donor base,” he said.
The Kansas Catholic Conference, official voice of the Catholic Church in Kansas, blasted the lawsuit, calling it “a direct attack on the health and well-being of vulnerable women facing the life-changing decision of abortion.”
“It exposes an insidious lie,” the group said. “Just last summer the abortion industry offered assurances that current Kansas laws would not be in jeopardy.
“The abortion industry is seeking to deceive women by hiding authentic healthcare information they need and deserve to make a deeply personal, life-changing decision about their pregnancy,” the church said.
There are now two states – Nebraska and Utah – that require similar “reversal” notifications for a medical abortion, according to the Guttmacher Institute, a research think tank that supports abortion rights.
Two other states – Indiana and North Dakota – have similar laws on the books that are not in effect as they are litigated in court – albeit federal court, not state court.
And there are eight states – Arkansas, Idaho, Kentucky, Louisiana, Oklahoma, South Dakota, Tennessee and West Virginia – that would have notification requirements but are moot because they already ban almost all abortions.
If those bans were not in effect, then abortion reversal counseling requirements would be in effect in all but Oklahoma and Tennessee, where there are court cases, according to Guttmacher.
The new law enacted this year requires any clinic providing medical abortions to post a sign — in at least three-quarter inch boldface type — telling women it’s possible to reverse the process once it has begun.
The sign reads as follows:
“NOTICE TO PATIENTS HAVING MEDICATION ABORTIONS THAT USE MIFEPRISTONE: Mifepristone, also known as RU-486 or mifeprex, alone is not always effective in ending a pregnancy. It may be possible to reverse its intended effect if the second pill or tablet has not been taken or administered.
“If you change your mind and wish to try to continue the pregnancy, you can get immediate help by accessing available resources,” the notice would read.
The bill also requires physicians to inform women that a medical abortion could be reversed within 24 hours of administering the first drug. Women have to be notified in writing and by telephone or in person.
The bill also applies to pharmacies that prescribe the drug mifepristone, which is used for inducing an abortion.
A violation on first offense is a misdemeanor. A second or subsequent conviction is a felony.
The state could fine any facility that fails to post the required signage $10,000 for
every day the signs are not posted.
The legislation comes when there is a rising number of medical abortions — also known as the abortion pill — that occur during the first 10 weeks of pregnancy.
They are used in roughly a third of all abortions nationally at eight weeks of gestation or less.
Drug-induced abortions are now the most common form of the procedure in Kansas, making up 68% of abortions performed in the state in 2021.
In 2010, medical abortions made up just 26 percent of all Kansas abortions. It became the most common form in 2016.
Supporters of the bill said the legislation was intended to give more information to women who might have second thoughts about having an abortion when they’re vulnerable.
They said the information being provided to women was factual.
Testifying before the House health committee, Kansans for Life lobbyist Jeanne Gawdun cited an article from Pregnancy Help News that reported that 4,000 babies had been saved from the reversal protocol.
Kansas and other states have responded to research by California physician George Delgado, who published a 2012 article in the Annals of Pharmacotherapy explaining how the effects of the first abortion pill could be reversed.
The protocol employs two steps: first with the drug mifepristone and a second with the drug misoprostol.
The first drug blocks a hormone critical for starting the pregnancy. The second drug, administered to 24 to 48 hours later, flushes the uterus by causing cramping and bleeding similar to a miscarriage.
Delgado’s initial research said that when the hormone progesterone was introduced between the first and second pill, four of six women studied brought their pregnancy to term.
He published an article more recently in Issues in Law and Medicine that examined a larger group of women.
The later study examined 547 patients who took progesterone within 72 hours of taking the first abortion pill. The study found there were 257 live births.
Opponents of the bill have questioned Delgado’s research.
The American College of Obstetricians of Gynecologist has said bills similar to the one in Kansas represents “dangerous political interference and compromise patient care and safety.” It said the reversal procedure is not based on science.
The American Civil Liberties Union said Delgado’s first study in 2012 was not supervised by an institutional review board nor an ethical review committee to protect human research subjects.
The ACLU said Delgado didn’t examine long-term effects of the drug protocol including the woman’s health, pregnancy complications or the chances for birth defects.
The American Medical Association joined a lawsuit in 2019 seeking to stop North Dakota’s law.
The lawsuit said physicians were being forced to provide information that was not supported by science. The law was temporarily blocked in 2019 but is still pending.
The AMA president said the North Dakota law required physicians “to mislead and misinform their patients with messages that contradict reality and science.”
