The state is waging a new battle over abortion that has largely gone unnoticed without the same publicity as a separate legal challenge to a broader state law requiring clinics to provide women with information about the procedure.
A Wichita health clinic that provides drugs that induce abortions is challenging a state law and regulation that prevent advanced practice registered nurses — known as APRNs — from prescribing abortion medications. An APRN and midwife who works remotely from California also is a plaintiff.
The lawsuit says that APRNs under Kansas law are otherwise fully authorized to prescribe a wide range of medications, including controlled substances and the abortion-inducing drugs mifepristone and misoprostol, for a variety of health conditions.
“Yet when it comes to abortion care, Kansas imposes a categorical prohibition that prevents APRNs from prescribing medications used to safely terminate a pregnancy, despite their training and clinical competence and that they may prescribe these same medications for other purposes,” the lawsuit says.
The lawsuit says that patients at Aria Medical Clinic, which brought the lawsuit, “face unnecessary and harmful barriers” because of the restrictions.
“The restrictions delay or deny access to timely medication abortion by requiring that patients be seen only by physicians, even when qualified APRNs…are available to provide care,” the lawsuit said.
“This has led to longer wait times, increased travel burdens, and in some cases, the complete loss of the option for medication abortion.”
The state is seeking to have the lawsuit dismissed. A hearing is set for Sept. 23 before Shawnee County District Judge Teresa Watson.
The state says there is no constitutional right to perform an abortion in Kansas and that the clinic’s financial interests place it at odds with the women it seeks to serve.
Lawyers for the state say that Kansas has had a longstanding requirement for abortions to be performed only by physicians with appropriate medical training.
They said the requirement ensures that the providers prescribing abortion-inducing drugs have the medical expertise to manage the complications associated with chemical abortion.
They said that the lawsuit is 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 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.
The state further says the clinic does not have standing to sue on behalf of its patients because its economic interest in reducing costs conflicts with patients’ interest in being treated by properly trained physicians.
“Their suit is directly at odds with the interests of Kansas women,” the state says.
“Chemical abortion carries significant medical risks, with data showing that more than 10% of women experience adverse events, including sepsis, infection, hemorrhaging, and other
serious complications,” the state argued in response.
The plaintiffs dispute that claim, saying that peer-reviewed studies have “repeatedly” explored the comparative safety of abortion treatment provided by APRNs versus the same care provided by physicians.
“These studies consistently conclude that APRNs can safely and effectively provide medication abortion care—in some instances, more safely and effectively than physicians,” the plaintiffs said.
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.
The lawsuit draws on the findings from the landmark 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.”
It contends laws that infringe on that right are subject to the heightened legal standard of strict scrutiny, meaning any restriction would have to be narrowly tailored to further a compelling government interest.
But the state questions why no patient has joined the lawsuit after the Legislature passed the law three years ago. It says the clinic has no standing to bring the lawsuit on their behalf.
With more than 40,000 abortions provided in 2023 and 2024, the fact that not one patient has joined the lawsuit suggests that plaintiffs lack enough of a sufficient connection to their patients to assert their rights in court, the state says.
“Any of these women could have filed a first-party suit under the theories plaintiffs assert,” the state argued.
“And if any of those women had been harmed in the manner alleged by plaintiffs, it is hard
to fathom why none of them ever challenged the laws, particularly because they could have afforded privacy protection via use of a pseudonym.”
The state says that the clinic, which has existed for two years, does not have a sufficiently close enough relationship to its patients to bring a lawsuit on their behalf.
“Aria Medical sees a high volume of pa tients whose interaction with the clinic is limited to a brief online survey, followed by a brief telehealth or in-person visit at which a physician dispenses the necessary medications,” the state says.
The clinic says the state’s argument is “wholly unfounded.”
“Kansas courts have repeatedly recognized that medical providers may bring constitutional claims on behalf of their patients, particularly in the context of reproductive health care,” the clinic says in response.
The clinic says it doesn’t need patients as plaintiffs. The clinic says it asserts third-party standing – the ability to bring a lawsuit on behalf of someone else – to challenge laws that limits its ability to provide treatment.
.Further, the state says the plaintiffs waited too long to bring the lawsuit, which was filed in April. The challenged legislation became law in July 2022, and the 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.
The plaintiffs said they did not delay in challenging the law, pointing out that their lawsuit was filed about nine months after the Kansas Supreme Court struck down the physician-only in-person restriction.
