Fight Just Beginning in Battle over Kansas’ New Abortion Clinic Regulation Bill

By Dave Andrusko

Pro-Life Gov. Sam Brownback

When we signed off Friday for the 4th of July holiday weekend, we just had time to include that at the request of two Kansas abortion clinics, U.S. District Judge Carlos Murguia had issued an injunction against the state’s new abortion clinic regulation law. The injunction will stay in effect until there is a trial in the lawsuit which involves two of the three Kansas abortion clinics—Aid for Women  and Center for Women’s Health.

According to Kansans for Life, Aid for Women located in Kansas City wasn’t close to passing the regulations, and thus the Kansas Department of Health and Environment (KDHE) wouldn’t inspect the premises. The Overland Park, Kansas, Center for Women’s Health cancelled its scheduled KDHE onsite inspection.

However in his ruling Judge Murguia “said there is a substantial likelihood Aid for Women, the Center for Women’s Health and their doctors will show that the state violated their constitutional right to due legal process,” the Associated Press’s John Hanna reported. “The judge also questioned whether the state has evidence yet that its new rules were ‘rationally related’ to protecting patients.”

The state’s third—and largest–abortion clinic, Planned Parenthood of Kansas and Mid-Missouri clinic, obtained an abortion license last Thursday, after lobbying relentlessly for nearly a decade against this law and complaining all week that the regulations were unnecessary and impossible to achieve in short time.

A lot has happened since then.

The Associated Press (AP) is reporting that the administration of Gov. Sam Brownback is going forward with the rules to flesh out clinic regulation. Robert Moser, secretary of health and environment, told Hanna, “Judge Murguia’s ruling is narrowly tailored and does not prevent KDHE from moving forward to establish permanent licensing regulations.”

The rules that Murguia blocked enforcement of were temporary rules which would have expired in four months. He also blocked enforcement of the section of the new law that requires that hospitals, single-day surgical centers, and private physician offices that do elective abortions must obtain an annual license, based on completed inspection and one additional unannounced inspection by Kansas Department of Health and Environment.

Hanna reports that “Department officials have said their proposed permanent rules are identical to the temporary ones blocked by Murguia.” This promoted Cheryl Pilate, an attorney for the Aid for Women clinic, to respond, “If the department makes few or no changes, providers will challenge the next set ‘for the very same reasons.’”

Following the hearing, Kansans for Life Executive Director Mary Kay Culp said, “It is clear to us that his ruling was based on missing and misleading information, which can be rectified in further proceedings.” She pointed out, for example, that “Judge Murguia was led to believe that one of the providers at Center for Women’s Health, Dr. Hodes, needed his free standing abortion facility to perform occasional late-term abortions on high risk patients, when in fact he has and still retains the ability to perform those at the full service hospital he is associated with, located not far from his office.”

State abortion business regulation is not a novelty. Twenty-seven states do so, though the laws often are won after protracted legal battles.  Similar comprehensive facility laws like Kansas’ in South Carolina and Arizona required seven and ten years to litigate, respectively.

(For more detail about South Carolina’s experience, see “South Carolina Experience Proves Why Abortion Clinic Regulations are Essential.”)

Federal courts have repeatedly rejected claims that state regulation violates the “right” to abortion, or causes an undue burden.  Rather, states may rationally regulate abortion businesses as a class while other clinics or medical practices are not. The courts have held that such regulations serve a valid state interest, codifying national medical and abortion association recommendations designed to ensure the  appropriate care of women.

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