Kan. Judge Refuses To Dismiss Suit Over Abortion Clinic Rules

August 6, 2012 — Shawnee County District Judge Franklin Theis on Friday declined to dismiss a lawsuit filed by two Kansas abortion providers against proposed regulations for abortion clinics, the AP/San Francisco Chronicle reports.

The regulations -- which apply to any facility that performs more than five elective abortions monthly -- are part of a new state law that requires abortion clinics to obtain an annual license. The rules mandate that each abortion clinic have a medical director who is a physician and that all physicians who provide abortion care have admitting privileges at a hospital within 30 miles. The rules also set various building and staffing requirements, specify drugs and equipment that must be kept on hand, and require that patients' medical records be available at the state's request.

The Kansas Department of Health and Environment adopted the regulations last year, but they have been on hold because of the lawsuit. Both sides expect the Kansas Supreme Court to ultimately decide the matter.

Friday's Arguments

At Friday's hearing, attorneys for Herbert Hodes and Traci Nauser -- the two physicians who challenged the rules -- argued against the state's request to uphold the regulations without a trial.

They said a pretrial ruling would result in issues coming before the state Supreme Court "piecemeal" and could cause the case to move back and forth between courts. Additionally, the plaintiffs want to ensure that all their evidence is entered into the record before the case makes its way to higher courts, said Bonnie Scott Jones, an attorney for the Center for Reproductive Rights, which is representing Hodes and Nauser. Although the physicians had filed a separate lawsuit in federal court, they dropped that case in favor of the state lawsuit after winning an early injunction against the rules.

Attorneys for the state countered that the state only must prove it has a rational reason -- protecting women's health -- to impose new regulations. Kansas Solicitor General Stephen McAllister argued that only the Kansas Supreme Court can decide whether the state constitution recognizes a right to privacy protecting access to abortion. "The question is whether we want to go there sooner or later," he said, adding, "The state's view is, let's get there now" (Hanna, AP/San Francisco Chronicle, 8/3).