By RACHEL MIPRO
Kansas Reflector
OLATHE — The state has put a “thumb on the scale against abortion,” attorney Alice Wang said Tuesday in arguments for a temporary injunction to block long-standing abortion restrictions in Kansas.
Over the span of an hour and a half hearing in Johnson County District Court, Wang, an attorney from the Center for Reproductive Rights, and her opponent, Denise Harle of Alliance Defending Freedom, argued the constitutionality of the “Women’s Right to Know Act,” legislation that uses medically inaccurate information to dictate abortion restrictions.
“No one has been OK with these laws,” Wang said. “The fact that plaintiff providers have been bending over backwards and engaging in Herculean efforts to try and comply with the laws so that they can still provide quality reproductive health care to their patients doesn’t make the laws any more constitutional.”
The lawsuit, filed by abortion providers June 6, challenges requirements in the law, such as a mandatory ultrasound, a 30-minute wait period before the abortion procedure, a requirement that a physician has to listen to the fetus’ heartbeat and offer the patient the chance to do so as well, and a mandate that certain paperwork has to be given to patients in printed form, in specific typeface, font size and color, at least 24 hours in advance of an abortion.
Another challenged section of the law requires providers to post inaccurate information on their websites and in clinics that abortions could increase risk of breast cancer and premature birth in the future — a claim not supported by scientific research.
Kansas Attorney General Kris Kobach said the law was a “common sense measure.”
“The Women’s Right to Know Act has been in place for more than 20 years and has been an important part of ensuring informed consent before any abortions are performed,” Kobach said in a news release after the day’s arguments. “We’re confident that the court will uphold this common sense statute.”
Plaintiffs in the case say the restrictions are a violation of the state constitution and patients’ right to reproductive health care. Among others, plaintiffs in the lawsuit include Herbert Hodes and Traci Lynn Nauser. The board-certified obstetrician-gynecologists’ challenge of a different state law led to the Kansas Supreme Court’s landmark 2019 ruling that the right to bodily autonomy in the Kansas Constitution includes the right to terminate a pregnancy..
Defendants in the new case include Kobach, Johnson County District Attorney Stephen Howe, Sedgwick County District Attorney Marc Bennett, and Susan Gile and Ronald Varner, officials from the Kansas Board of Healing Arts.
Emily Wales, president and CEO of Planned Parenthood Great Plains, one of the plaintiffs in the case, said the landscape following the U.S. Supreme Court’s overturn of Roe v. Wade, as well as a new state law requiring doctors to tell patients about a medically unsound “abortion reversal,” made the lawsuit necessary.
Following last year’s reversal of Roe v. Wade, states with abortion access have dwindled, making Kansas an outlier in the region. Kansas law allows abortions up to 22 weeks after gestation, and in cases where the mother’s life is in danger.
Kansas voters in August 2022 overwhelmingly defeated a constitutional amendment to take away the right to abortion.
Abortion numbers in the state have skyrocketed in the year since federal abortion protections were overturned, with record numbers of out-of-state travelers coming to Kansas clinics.
Wales estimated providers in her organization have had to turn away 2-10 people every day because of bureaucratic form requirements, including patients who come in with the wrong font color on their forms.
Wales said the organization used to be able to reschedule patients, but with new volume and few providers, clinics are now forced to turn women away.
“Now what we say is, ‘Can you get to Colorado?’ ” Wales said. “How many hours on the road will it be for you to get from home to Chicago?”
Harle, of Alliance Defending Freedom, said those factors shouldn’t impact Kansas law.
“External factors suddenly make this law, which they’ve never had an issue with, unconstitutional just because other people in other states are making decisions?” Harle questioned. “That’s not how constitutionality works.”
Wales said the newly implemented “abortion reversal” law added a sense of urgency to the lawsuit. Republican lawmakers overrode Gov. Laura Kelly’s veto to fold the junk science requirement into the Women’s Right to Know Act during the recent legislative session. The law — which won’t be implemented till the settling of the lawsuit — requires abortion providers to tell patients they can reverse the effects of mifepristone, the first of two pills used in medication abortion.
Anti-abortion lobbyists point to a debunked study to claim pregnancy can be preserved by taking progesterone. The “abortion reversal” has significant health risks, including risk of hemorrhaging, and respected medical institutions have warned against the practice, including the American College of Obstetricians and Gynecologists, which called the process scientifically unsound, unproven and unethical.
Harle said providers should give women the abortion reversal information.
“They’re putting the profit over the women,” Harle said. “The women deserve this information and they deserve better.”
Harle said the “abortion reversal” was about providing women with information and that the reversal process was an area of “medical uncertainty,” one of several claims questioned by District Judge Krishnan Jayaram.
“Is it though?” Jayaram interjected, before adding he didn’t believe the reversal stood up to medical scrutiny.
Jayaram said he will decide whether to go through with the injunction in “short order,” with a decision likely to be released in the coming days.
___