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Federal Judge Blocks Kansas Abortion Law

A Federal Judge in Topeka has issued an injunction against implementation of a new Kansas law that purports to regulate how abortion clinics operate, but does so in such a way that it makes it virtually impossible for anyone to provide abortions in the state:

A federal judge Friday temporarily blocked the state from imposing new licensing rules on abortion providers that would have shut down two of the state’s three clinics.

In stopping the regulations from taking effect Friday, U.S. District Judge Carlos Murguia capped a week of speculation about the future of abortion in Kansas.

He found that the abortion clinics were likely to succeed on claims they were denied due process and would suffer irreparable harm if the rules started Friday. He ruled the physicians’ patients would suffer if the clinics were closed, including two women with “fetal anomalies” that need treatment.

Although it appeared early in the week that Kansas’ abortion clinics could be shut down because of the new licensing requirements, the judge’s preliminary injunction means that for now Kansas will continue to have three clinics.

“We’re very concerned about the health of women, and this is a great relief,” said Cheryl Pilate, a lawyer representing Aid for Women in Kansas City, Kan., one of the two clinics seeking the restraining order.

“We’re preserving the availability of medical services in a safe and dignified setting.”

Murguia, however, emphasized the case was in its “very early stages” and that a full record hadn’t been developed.

The Kansas Legislature this year passed new licensing requirements for abortion clinics. The Kansas Department of Health and Environment was left to come up with the specific rules, such as standards for procedure rooms and dressing rooms for staff and patients.

(…)

The regulations total 36 pages. Among other things, they require any physician performing an abortion to have clinical privileges at a hospital within 30 miles of the clinic.

Standards for the building include dressing rooms for the staff that are equipped with a toilet, a sink and a place to store clothes. The procedure rooms are required to be at least 150 square feet, and the recovery area must be at least 80 square feet per patient.

The rules also required at least 50 square feet of janitorial space for each procedure room, which meant Hodes’ office would have had to add 350 square feet of janitorial space, according to court testimony.

Although they’re designed as a regulation of the practice of medicine, it’s fairly clear what the Kansas legislature and bureaucracy was aiming for here, a back door way to ban all abortions in the state without actually passing a law that bans all abortions. The Supreme Court has been rather clear that regulations are permissible, but they must be narrowly tailored and reasonably related to the purpose of regulating the practice of medicine. These clearly aren’t. I don’t expect they’ll survive very long or, if they do, they will be substantially redrafted to make them less burdensome and restrictive.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. The big question is, how do these regulations compare to those for doctors providing outpatient surgery at surgi-center type clinics? If the regulations on abortion clinics are much more stringent, then I think they have an argument that abortion providers are being unduly targetted.

    But what about, for example, this Virginia Bill (SB294), which merely requires abortions to meet the exact same regulations applied to all other outpatient surgery providers?

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  2. Hey Norm says:

    Jeesh…take away denying a womans rights and all republicans have left is torture and tax cuts for the rich.

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  3. David says:

    Stormy, no other similarly situated facility is subject to rules like were promulgated under the Kansas Statute. Also, the rules were just issued recently, they were not even put out for comment before they were issued. I saw the time frames on it the other day, but am too tired to pull it up, but it was obscenely short from the time issued to the date required to comply (I’m thinking something like a week).

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  4. @David:

    That may be the case, but that’s not the argument Planned Parenthood is making in their lawsuit. As I said in the Virignia case, the law there only states that abortion clinics are outpatient surgery centers and most follow the same regulations as all other outpatient surgery centers. Planned Parenthood has already made a statement that they intend to file a lawsuit if the Virginia law passes. So what Planned Parenthood is actually arguing is that abortion center cannot be regulated in any way, which seems an utterly bizarre legal argument.

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  5. A voice from another precinct says:

    @Stormy Dragon: As opposed to conservatives saying that…oh for example… businesses or wages should not be regulated in any way? On the other hand, conservatives are not making a legal argument when advocating deregulation, they are making a political one.

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  6. David says:

    @Stormy Dragon:

    I do not know any thing about the VA statue, just what is in the KS one and a little about the implementation. The statue has nothing to do with women’s health and everything to do with outlawing abortion in Kansas without actually outlawing abortion. This is not about making clinics comply with existing standards, it’s about making standards on the fly to shut the clinics down.

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  7. @A voice from another precinct:

    I made exactly that point in an earlier thread on that Kansas bill. While recognizing that both sides are being hypocrites, the Republicans are at least being hypocrites in a way that maintains the status quo.

    My interest here is what happens if the Planned Parenthood side wins. Will the court then extend the logic to the rest of the industry and decide these regulations are a crippling burden on all medical practices? Or will there be an abortion exception making it the one medical procedure that may not be regulated? Both results seem ridiculous and I wonder what Planned Parenthood is aiming for here.

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  8. WR says:

    @Stormy Dragon: Stormy, you really need to do a little research here, because every argument you’re making is based on assumptions that are simply wrong. Kansas passed a set of regulations that apply to abortion clinics only, and that have no basis in any real need:

    If a woman has an abortion in Kansas, the room temperature will have to be comfortable — between 68 and 73 degrees — under a new state health department rule taking effect in July.

    The room will have to have at least 150 square feet, excluding “fixed” cabinets, and come with its own janitor’s closet with 50 or more square feet. The provider will be required to keep 13 types of drugs on hand, along with blood pressure cuffs for adults, children, infants and premature babies. Patients will have to remain in a recovery room for at least two hours afterward.

    The new regulations for abortion providers in Kansas are more specific in places than they are for hospitals and ambulatory surgical centers, and more detailed than the rules for most clinics and offices in which doctors perform many surgical procedures.

    http://www.kansas.com/2011/06/28/1911589/abortion-clinic-law-maps-out-details.html#ixzz1R3tstSvg

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  9. Stormy, you really need to do a little research here, because every argument you’re making is based on assumptions that are simply wrong.

    You need to read; I’m not talking about the Kansas Bill. I’m talking about SB 294 in Virginia.

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