A Johnson County judge appeared skeptical Tuesday that a Kansas law imposing a 24-hour waiting period on women seeking abortions in Kansas would stand up to standards established by the state’s constitutional right to an abortion.
Judge Christopher Jayaram, who was appointed by Democratic Gov. Laura Kelly in 2021, heard arguments from attorneys representing Kansas Attorney General Kris Kobach and a pair of Kansas abortion providers, including Planned Parenthood. Tuesday’s hearing focused on the providers’ effort to block enforcement of the Women’s Right to Know Act while their lawsuit seeking the total overturning of the law moves through court. The case will play a key role in determining the bounds of Kansas abortion law in the post-Roe era. Kansas has established itself as a key access point for abortion since voters last year overwhelmingly voted to retain the state-level right to an abortion.
The state constitution places an extremely high bar on any abortion restrictions requiring evidence that the restrictions are narrowly designed to serve a compelling state interest. The results of the case could send a signal to lawmakers about how far they can go in regulating and restricting the procedure beyond rules applied to other medical care. The challenged law requires physicians to listen to the fetus’ heartbeat 30 minutes prior to an abortion. The policy requires providers to, without evidence, post information in their clinics and websites that abortions could increase their risk of breast cancer and premature birth in future pregnancies. Clinics must also provide information about pregnancy resources and fetal development. A packet of information must be provided 24 hours before an abortion in specific fonts and colors.
Portions of the law were first enacted in 1997. Lawmakers have amended the law several times since, most recently adding a policy this year requiring providers to tell patients a medication abortion may be reversible, though the science is unproven. Attorneys representing two Kansas abortion providers challenged the law in June, arguing it violates the state’s constitutional right to an abortion by overburdening providers and patients in a way that limited access to the procedure.
Furthermore, they argue it violates a provider’s first amendment rights by forcing them to tell patients things they don’t personally believe. Alice Wong, an attorney for the Center for Reproductive Rights representing the abortion clinics, said in court that infringement has become more pronounced as a flood of patients come to Kansas from Texas, Missouri, Oklahoma and other states that have banned or severely restricted abortion in the past year.
“Every day the act remains in effect, it denies plaintiffs and their patients constitutional rights,” she said. Kobach, a Republican, hired the Alliance Defending Freedom to represent Kansas in the case. The right-wing firm played a key role in the overturning of Roe v. Wade last year.
Denise Harle, an attorney for the firm, argued the law did not infringe upon a woman’s right to an abortion and therefore should be evaluated on a lower legal bar offered to medical regulations. Furthermore, Harle pushed against a temporary injunction arguing providers had successfully complied with the law for more than two decades.
Harle said the 2019 decision outlined that a law that made abortion more difficult did not necessarily infringe access. She said the law must make abortion dangerous or inaccessible, which this law does not. “It’s not a right to unregulated abortion,” Harle said. Arguing that the policy actually enhanced that right by providing patients with the information needed to make a decision.
While questioning attorneys on both sides, Jayaram seemed skeptical of Kobach’s office. Though Harle suggested the case should be evaluated on a lower standard applied to medical regulations, Jayaram said the 2019 ruling establishing a state-level right to an abortion was “crystal clear” that he must evaluate the case using the highest legal bar.
At one point, Jayaram reminded attorneys that his background included extensive work in medical malpractice law in Kansas, granting him a high familiarity with informed consent laws. “I’m struggling to see why we’re singling out one specific provider type,” Jayaram said. “And how that makes consent any more informed.” Despite Jayaram’s questioning in court Kobach issued a statement after the hearing that he was “confident that the court will uphold this common-sense statute.”
Before he can rule on whether the law itself violates the constitution, Jayaram must first act on the request to block the law pending litigation. Harle argued the inaction of abortion providers over the decades parts of this law have been in effect indicated the law was not overly burdensome or unconstitutional. “They’re saying that these other circumstances, external factors suddenly make this law that they’ve never had an issue with unconstitutional just because other people in other states are making decisions and that’s not how unconstitutionality works,” Harle told reporters after the hearing.
Wang, the attorney for the abortion providers, said her clients were spurred to action by the new abortion pill reversal provision of the law because it is a “bridge too far.” In June, the Kansas attorney general agreed that the state will not enforce that piece of the law until after Jarayram rules on the temporary injunction. Furthermore, in the post-roe landscape, Wang said providers have had more issues turning patients away because they did not print state mandated information in the proper format prior to arriving.
“For many of our patients right now what it means is we say, sorry, you’ve got to go home. But we often don’t have other appointments on the calendar to put them,” Emily Wales, CEO of Planned Parenthood Great Plains told reporters. “We also often tell people you’ve got to go home to Texas.”
Source : Kansas City
