The Kansas Supreme Court on Friday struck down a series of abortion clinic regulations that were enacted 13 years ago but were challenged for restricting access to the procedure under a landmark ruling that found abortion was protected by the Kansas Constitution.
Writing for the court, Justice Melissa Standridge found that the abortion providers demonstrated that the clinic regulations infringed on the right to an abortion established in a 2019 Supreme Court ruling that was affirmed on Friday.
The court’s decision upheld a 2021 ruling handed down by Shawnee County District Judge Mary Christopher permanently blocking at that time was a 10-year-old law imposing new regulations on abortion clinics.
Standridge wrote that the state failed to show that the regulations furthered its interests of protecting and ensuring the safety of maternal health.
She wrote that the state failed to meet the heightened legal standard of “strict scrutiny,” requiring the state to not only show it had a compelling interest to pass new regulations but that they were narrowly tailored to meet that interest.
“While the State’s articulated interest in protecting maternal health may be compelling as a theoretical matter…, we question whether an interest articulated in the abstract is enough to establish the compelling nature of that interest under the strict scrutiny framework,” she wrote for the court.
“Requiring only a theoretical government interest creates the potential for arbitrary results when courts decide under strict scrutiny whether the interests are compelling — i.e., extremely weighty, possibly urgent, and rare.”
Kansans for Life said the court’s ruling was predictable after voters rejected a constitutional amendment in 2022 that would have established that abortion was not a protected constitutional right in Kansas.
“Adding insult to injury, extremely liberal judges of the Kansas Supreme Court have now overturned basic health and safety standards for abortion facilities when one of the state’s largest abortion franchises recently operated for an unknown period of time with no medical oversight,” said Danielle Underwood, spokesperson for KFL.
“It hurts to say, ‘We told you so,’ to the many Kansans who were misled by the abortion industry’s assurances that it would still be ‘heavily regulated’ in our state if voters rejected the 2022 amendment,” Underwood said.
The lawsuit over the clinic regulations, first brought in 2011, characterized the regulations as “irrational and burdensome” in violation of the Kansas Constitution.
Obstetricians Herbert Hodes and Traci Nauser contended that enforcement of the licensing and inspection procedures enacted by the Legislature would have shut down abortion in Kansas.
Hodes and Nauser argued the regulations were impossible to meet by the time they took effect even though their clinic met applicable patient care standards and existing state regulations.
The regulations were first challenged in federal court in the summer of 2011 and were temporarily blocked there.
Another suit was brought against the regulations in state court later that fall, contending they violated the Bill of Rights in the Kansas Constitution.
The regulations were temporarily blocked in state court, but the case lingered for years in district court and was ultimately leap-frogged by another case challenging a separate state abortion law.
While new clinic rules were never applied, the Supreme Court decision gives abortion clinics certainty for the future, said Hillary Schneller, senior staff attorney for the Center for Reproductive Rights.
Schneller said the clinic rules interfered with every facet of patient care from the time they walked into the office until the time they left because they were seeking an abortion.
She said the regulations required providers to purchase unnecessary equipment, hire more staff and keep patients in the office longer than needed while subjecting them to “onerous invasions” of privacy.
“It’s a quite sweeping set of restrictions,” she said.
Among other things, the lawsuit cited these regulations as being too burdensome:
- Barred medical assistants from administering medication “despite the fact that medical assistants are trained and qualified” to give drugs and routinely did so in an outpatient setting.
- Required a female physician performing a pelvic exam to have another staffer in the room regardless of whether or not it was requested by the patient.
- Required the recovery area to have a nurse’s station so each patient could be observed. The lawsuit said no recovery room was needed as part of the standard of care for a first trimester abortion.
- Gave the state health department “broad access” to patient medical records, including information that would identify the patient, the lawsuit said.
- Required an abortion clinic to register with the Board of Pharmacy “despite the fact that there is no mechanism by which the board register’s physician office.”
Justice Caleb Stegall dissented in Friday’s decision, asking whether the regulations were anything more than what is already required of health care providers.
He suggested that regulation of other medical procedures could be subject to the same legal standard under Constitution’s Bill of Rights, which says “all men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”
“They are identical in that access to all medical procedures must be protected as a fundamental right of personal autonomy,” Stegall wrote.
“Extracting a tooth? Chemotherapy? Getting a vasectomy? Plastic surgery? Knee replacement? Getting contact lenses? Having an abortion? Chiropractic adjustment? All equally protected by Section 1.
“Every such ‘restrictive measure’ has the effect of infringing on one’s personal autonomy simply because it will make access to the service more expensive and less accessible than the service would otherwise be in an imagined libertarian utopia…”
He wrote that the court’s interpretation of the Bill of Rights in the Kansas Constitution had taken a “bizarre” but predicted turn.
He predicted the court’s legitimacy would be damaged by its abortion rulings.
“In short, this court has ‘abandoned’ the original public meaning of Section 1 of the Kansas Constitution Bill of Rights and painted the interest in unborn life championed by millions of Kansans as rooted in an ugly prejudice,'” he wrote.
Stegall said when he dissented in the 2019 abortion case, he wrote that a “legal regime” of unrestricted access to abortion would be “the judicially preferred policy tail wagging the structure of government dog.”
As such, Stegall said “every rule and even judicial coherence and consistency will ‘give way, at every turn, to the favored policy.'”
“The betrayal of this court’s promise of neutral, uniform, and rational constitutional adjudication is as far-reaching as it is audacious — and its damaging impact on this institution’s legitimacy will be felt for years to come,” Stegall wrote.
Solicitor General Anthony Powell asked the court to keep the clinic rules, which were passed among a number of new limits on abortion enacted after Sam Brownback was elected governor in 2010. Powell said the rules didn’t block access to abortion.
“In our view, these regulations, while perhaps imposing some inconvenience, ultimately do not impair a woman’s ability to obtain an abortion,” Powell told the court.
Powell said the state had a compelling interest in adopting the regulations because abortion is different from other medical procedures because it “takes a human life.”
“We have an interest in the health of Kansans and in particular we have an interest in maternal health for women,” Powell said.
“Those are all compelling governmental interests we’re trying to further with these regulations,” he said.
“Because abortion is a procedure that takes a life, that enhances the interest of the state,” he said.
But Justice Dan Biles asked Powell how the regulations furthered the state’s compelling interest.
Powell said the state had testimony from experts at the trial court that indicated that regulations were reasonable and could be easily met by providers.
Standridge was quick to interject.
“That doesn’t go to whether or not it furthers that maternal health in abortion,” Standridge said.
Powell shot back, “I think it does.”
Biles said the district court found the state hadn’t identified any safety concerns to warrant singling out abortion clinics for separate regulations.
Biles asked Powell whether that court’s finding was “supported by substantial competent evidence.”
Powell responded, “The record is, Justice Biles, as the record is.”
“Our view is that isn’t critical to whether you can uphold these regulations or not,” he said. “If they enhance the safety for women, that’s enough.
“Even if the existing general regs provide safety, the fact that we want to increase that level of safety is appropriate.”
Biles seemed skeptical.
“The case is framed, and I think needs to be analyzed, as an overregulation case — killing an ant with an atom bomb, in effect,” Biles said.
“You’re overregulating and thereby not gaining anything other than restricting access to abortion,” he said.
