A legal challenge to a state law prohibiting advanced practice registered nurses from prescribing abortion-inducing medications can move forward following a ruling handed down by a Shawnee County judge.
District Judge Teresa Watson denied the state’s request to dismiss the lawsuit brought by the Aria Medical Clinic of Wichita as well as Elyse Gilbert, an APRN and midwife who works remotely from California as a contractor for the clinic.
Watson dismissed claims raised by the state arguing that the plaintiffs lacked standing to bring the lawsuit, they weren’t suffering irreparable harm and that no abortion patients joined the lawsuit as plaintiffs.
Aria opened its Wichita clinic in January 2023 with a business model that called for providers to see a high volume of patients, with the goal to schedule patients within seven days of a request.
The clinic said that the demand for abortions was so high that it struggled to find enough doctors to cover appointments.
The lawsuit said that APRNs under Kansas law are fully authorized to prescribe a wide range of medications, including controlled substances and the abortion-inducing drugs, for a variety of health conditions.
But the lawsuit said that when it came to abortion, APRNs were barred from prescribing medication used to safely terminate a pregnancy despite their training and clinical skills.
Kansans for Life said the lawsuit puts women at risk.
“This cruel lawsuit is designed to further loosen medical safeguards over abortion franchises and puts women at greater risk,” said Jeanne Gawdun, director for government relations for KFL.
“A recent study by The Ethics and Public Policy Center shows that more than 1 in 10 women who take the abortion pill require emergency-room treatment — underscoring why physician-only protections matter,” Gawdun said.
“We strongly support Kansas laws that put women’s health above the abortion industry’s profits,” she said.
The lawsuit drew on findings from the landmark Kansas Supreme Court case from 2019, arguing that the Kansas Constitution Bill of Rights protects an “inalienable natural right of personal autonomy, which includes the right to abortion.”
The lawsuit claimed that the law violated their patients’ rights of bodily autonomy and
self-determination as well as their equal protection rights under the Kansas Constitution.
The lawsuit argued that the law – and a subsequent rule – restricting APRNs from prescribing abortion-inducing drugs delayed or burdened pregnant women seeking medication abortions in Kansas.
The plaintiffs said the restrictions require patients to travel longer distances as well as impose financial, work and child care burdens that result in delayed treatment.
The clinic also said the law violated the equal protection guarantees of the Kansas Constitution by treating women who seek the drugs used for medication abortions differently than women who need the same drugs for other purposes.
The clinic and the advanced practice registered nurse say that their patients “have been, and are continuing to be, irreparably harmed” by the violation of their constitutional rights.
The allegations of constitutional violations were coupled with allegations of economic and professional consequences to the clinic and advanced practice registered nurses.
The plaintiffs said removing the restrictions on APRNs would lower Aria’s cost to provide medication abortions and increase Gilbert’s income and her range of professional practice.
The state said the lawsuit was driven by Aria Medical’s desire to cuts costs, which the clinic says is an effort to make abortions available regardless of the patients’ ability to pay.
The state said that allowing Aria and Gilbert to sue on their patients’ behalf violated
due process because there was a conflict of interest between plaintiffs – who have an economic stake in providing more medication abortions – and the rights of women who benefit from the protections afforded by Kansas law.
The clinic says that medication abortions provided by APRNs can be more cost-effective
than the same treatment provided by physicians and, as a result, it is spending more money on patients than it would if the restrictions weren’t in effect.
Aria’s claims that it “strives to provide care no matter the patient’s ability to pay” negated the alleged economic conflict of interest, Watson ruled.
“Defendants’ argument is not fully developed in the briefs, and it appears to rely on a conflict of interest that has not been established on the face of the petition.”
Further, the state said that the clinic’s delay in challenging the rule runs counter to its request for a permanent injunction because it suggests a lack of urgency.
The state said the plaintiffs waited too long to bring the lawsuit, which was filed in April.
The challenged legislation became law in July 2022, and a nursing board regulation was adopted in October of that same year.
“Historically, abortion providers have a documented pattern of promptly challenging Kansas abortion regulations soon after enactment, making plaintiffs’ delay here inexcusable,” the state argued.
“The unreasonableness of plaintiffs’ delay is underscored by their own allegations of ongoing harm,” the state lawyers said.
“If these harms were truly significant and ongoing, basic prudence would have dictated prompt legal action, not a nearly three-year delay,” the state said.
Watson said the lawsuit could not be dismissed for that and other reasons.
“This is not an argument that can be decided as a matter of law based only on the allegations of the petition and the timing of plaintiffs’ instant suit,” Watson rule.
“Plaintiffs insist that they must be allowed to present facts supporting the reasonableness of the timing of their lawsuit and the nature of the harms alleged in the petition.
“Plaintiffs have pled enough in their petition to survive a motion to dismiss,” she ruled.
Back in 2011, the Legislature enacted a “physician-only law” pertaining to medication abortion. The law said that no abortion shall be performed or induced by anyone other than a physician licensed to practice medicine in Kansas.
That law also required that abortion-inducing drugs be administered in the same room and in the physical presence of the physician who prescribed, dispensed or otherwise provided
the drug to the patient.
However, that law was struck down last year by the Kansas Supreme Court when it ruled that clinic regulations passed in 2011 infringed on the state constitutional right to an abortion established by a 2019 state Supreme Court ruling.
However, in 2022, the Legislature passed a new law allowing APRNs to prescribe any drug, including controlled substances, but excluded drugs intended to cause an abortion. The Kansas State Board of Nursing adopted a similar rule later that year.
The restrictions approved by the Legislature and adopted by the state nursing board were not part of the clinic rules that the Supreme Court struck down in 2024.
