TOPEKA — An attorney for the Center for Reproductive Rights says a 2011 state law that targets abortion clinics with a “regulatory scheme” was an unjustified attempt to restrict access to a fundamental right.
The center, which represents two doctors who operate a clinic in Overland Park, wants the Kansas Supreme Court to permanently block enforcement of the law based on a 2019 ruling that determined the state constitution’s right to bodily autonomy applies to the right to terminate a pregnancy.
The 2011 law in question singles out abortion clinics and imposes regulations that don’t apply to other medical practices. The regulations dictate the number, type and dimensions of rooms in a facility, as well as extensive reporting requirements. The law requires doctors who provide abortions have admitting privileges to a separate hospital.
Courts have blocked the Kansas rules from taking effect.
“The laws would make it unsustainable, if not impossible, for our clients to continue providing the high-quality care they have provided for decades, and there’s been no showing to justify that,” said Caroline Sacerdote, staff attorney for the Center for Reproductive Rights.
Sacerdote and Anthony Powell, solicitor general for the Kansas Attorney General’s Office, answered reporters’ questions Monday after arguing against each other before the Kansas Supreme Court.
Powell said the Aug. 2 vote on a constitutional amendment that would have overturned the 2019 decision by the Kansas Supreme Court was an indication that Kansans don’t want a complete ban on abortion. But he said voters probably were open to reasonable restrictions.
“We’re advocating for regulations that ensure safety of moms, mothers who go in there to have abortions,” Powell said. “That I think the public supports. We’ll see what the court does.”
The challenge to clinic regulations involves the same plaintiffs as the case that led to the 2019 ruling. The court heard arguments on both cases Monday.
Herbert Hodes and Traci Lynn Nauser are board-certified obstetrician-gynecologists licensed to practice medicine in Kansas. In addition to performing abortions, court documents show they provide a full range of OBGYN services at their practice in Overland Park, including family planning services, pap smears, screening for and treatment of sexually transmitted infections, treatment of menopausal symptoms, and fertility treatments.
In the 2019 case, which dealt with a law banning a procedure used in 95% of second-trimester abortions, the court ruled that any attempt to restrict a fundamental right must meet a “strict scrutiny” test. In essence, the state has to show there is a compelling interest in imposing a restriction, and that the restriction is narrowly tailored to meet that need.
Sacerdote argued the regulations on abortion clinics were specifically designed to make it more difficult to access abortion services, and there was no evidence to support the state’s claim that the rules enhance safety.
“During the more than a decade since the laws were enacted, and since the state has agreed not to enforce these laws, the state has pointed to no health or safety issue regarding abortion care at a facility in the state, much less any issue that these laws would address,” Sacerdote said in her closing argument Monday.
Powell, the state’s solicitor general, told reporters he was worried about the role of courts in mediating a clash of values surrounding abortion.
Powell retired from the Kansas Court of Appeals in June, a position he held since being appointed to the bench by former Gov. Sam Brownback in 2013. He previously served as a Sedgwick County District Court judge and for four terms as a Republican in the Kansas House.
“If the court continues to be in the abortion umpiring business, we’re going to continue to fight about it,” Powell said to reporters. “If we’re going to actually fight about it, let’s let the people try to resolve it. And maybe there’s a chance to wrestle this issue to the ground to have an abortion law that the overwhelming majority of people can support.”
In arguments before the court, Powell said abortion deserves to be treated differently from other medical practices because it involves taking a human life.
Justice Dan Biles said the state doesn’t gain anything by imposing rules for abortion clinics other than restricting access to abortion.
“This case is framed, and I think needs to be analyzed, as an overregulation case — killing an ant with an atom bomb, in effect,” Biles said.
When justices pointed to concerns raised by doctors in sworn affidavits, Powell said “affidavits are drafted by lawyers.”
Justice Melissa Standridge interrupted Powell to ask if he had any evidence that the affidavits were written by attorneys. Powell said he doesn’t.
“I’d just like to push a point to clarify something that might be very dangerous if this if misinterpreted,” said Justice Evelyn Wilson. “You mentioned that about the affidavits, the affidavits were evidence, correct? And you’re not suggesting the affidavits were not the sworn testimony?”
Powell: “I’m not suggesting that there’s anything improper.”
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