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Kansas judge blocks 24-hour waiting period for women seeking abortions

Abortion in Kansas remains legal, but tightly regulated.
Rose Conlon
/
Kansas News Service
People seeking abortions in Kansas will no longer have to navigate a slate of restrictions that providers say are unconstitutional.

The temporary injunction also puts state-mandated counseling and a new abortion pill 'reversal' law on hold.

A Kansas judge has temporarily blocked several of the state’s longstanding abortion restrictions, including a 24-hour waiting period that providers say has resulted in hundreds of women being denied abortions.

In an order released Monday, Johnson County District Judge K. Christopher Jayaram wrote that the restrictions “[appear] to be a thinly-veiled effort to stigmatize the procedure and instill fear in patients that are contemplating an abortion, based upon disproven and unsupportable claims.”

The newly-blocked restrictions also include state-mandated counseling that contains the disproven claim that abortion increases the risk of developing breast cancer; a 30-minute waiting period after meeting with a doctor, and a new law that required providers to give patients medically unsupported information about reversing the effects of abortion pills.

“This ruling represents a hard-fought win for our patients all across Kansas and in neighboring states where abortion is banned,” Traci Lynn Nauser, an Overland Park doctor and plaintiff on the lawsuit, said in a news release. “While there is still a long road ahead to ensure that Kansans are able to access timely abortion care without facing barriers, we are grateful that we can continue to provide accurate, patient-centered information to those who trust us with their care.”

The restrictions are at the center of a lawsuit abortion providers filed this summer in which they argued the restrictions — some stretching back decades — are unconstitutional. The restrictions will remain on hold until a June 2024 hearing on that lawsuit.

The case is the first new challenge to state abortion restrictions since Kansans overwhelmingly rejected a ballot measure that would’ve allowed lawmakers to ban the procedure entirely — and since the dissolution of federal abortion restrictions began sending women from across the region to Kansas clinics.

What restrictions are providers challenging?

In the lawsuit, Planned Parenthood Great Plains and an independent Overland Park clinic are targeting the new abortion pill “reversal” law along with several older restrictions in the woman’s right-to-know act first enacted in 1997.

Some restrictions, the providers say, force doctors to lie to patients. Information that providers must give to patients includes the disproven claims that abortion could make premature birth in future pregnancies more likely and could put them at greater risk of developing breast cancer.

The abortion pill “reversal” rules, added to the existing rules this year, steers patients toward an experimental hormone treatment that major medical groups have called unethical and potentially dangerous. Abortion pills are used in nearly 60% of Kansas abortions.

Other rules, they say, needlessly complicate the process of getting an abortion to the point that it interferes with patients’ constitutional right to bodily autonomy. Patients must correctly print and sign a consent form 24 hours before their appointment — on white paper, in black ink, in 12-point Times New Roman font.

As many as 1 in 4 patients make some mistake, Planned Parenthood Great Plains staff say, often a minor formatting error. When that happens, providers are forced to turn them away.

“Sometimes it’s as simple as having signed in the wrong place,” the organization’s president and CEO Emily Wales told reporters after an August hearing. “More often than not, patients are telling us, ‘I don’t have a printer at home.’ Or, ‘I’m coming from a state where abortion is banned, and I’m too scared to go to my local public library and print the form there.’”

And the stakes are higher now that more than two-thirds of Kansas clinics’ patients come from out of state. They might have to drive hours back home without the procedure they came for, or make arrangements to stay overnight — if they can even get another appointment.

“We have to tell them, ‘Sorry, you’ve gotta wait another 24 hours,’” Wales said. “But, realistically, our schedules are so booked, people can’t get in.”

After the U.S. Supreme Court overturned Roe v. Wade last year, Kansas became the closest place to get an abortion for patients from much of Oklahoma, Missouri and Texas. That led to unprecedented demand at Kansas clinics and a 57% rise in abortions in 2022 — a figure that likely would be even higher if clinics had more availability.

How is the state defending the restrictions?

Lawyers for the state say the restrictions constitute common-sense safeguards that ensure women are informed about the risks of abortion.

Kansas Attorney General Kris Kobach has retained the conservative legal group Alliance Defending Freedom to assist with the case. ADF attorney Denise Harle told reporters after the August hearing that heightened consequences of certain restrictions due to an influx of out-of-state patients should have no bearing on whether a law is allowed to stand.

“That’s not how constitutionality works,” she said. “A law is constitutional or it’s not.”

Harle defended the merits of abortion pill “reversal” in the face of apparent skepticism from Jayaram during the hearing.

“More than 4,500 babies have been born through abortion pill reversal,” she said. “I have talked with the mamas of many of these babies. They are so thankful that they were told about the opportunity to save their child’s life.”

Anti-abortion groups argue mandatory waiting periods, like the 24-hour rule in effect in Kansas, give women time to consider a decision they describe as life-altering.

“This is a nightmare for women and a dream come true for the profit-driven abortion industry,” Kansans for Life spokesperson Danielle Underwood said in a statement Monday about the temporary injunction. “Women will pay the price for the deceitful practices of the abortion industry that consistently puts its own profits above all else.”

Kobach, who has vowed to vigorously defend the restrictions at issue, could not immediately be reached for comment about the temporary injunction.

What’s next in the case?

Jayaram will consider the merits of abortion providers’ case as a whole during a hearing scheduled for next summer.

The Republican-controlled Kansas Legislature remains bound by a 2019 state Supreme Court decision that found the Kansas Constitution guarantees the right to bodily autonomy. The state must prove that any law infringing upon that right is strictly tailored to advance a compelling state interest.

The lawsuit is the first time that standard will be put under the microscope since Kansas voters voted down an effort to strip abortion rights from the constitution last year.

Lawmakers overrode gubernatorial vetoes to pass two limited laws favored by abortion opponents, including the abortion pill reversal law.

The second — prohibiting doctors from killing infants born alive due to an attempted abortion, something opponents argue does not occur — was derided by abortion rights groups but not targeted by the lawsuit.

Rose Conlon reports on health for KMUW and the Kansas News Service.

The Kansas News Service is a collaboration of KCUR, KMUW, Kansas Public Radio and High Plains Public Radio focused on health, the social determinants of health and their connection to public policy.

Kansas News Service stories and photos may be republished by news media at no cost with proper attribution and a link to ksnewsservice.org.

Rose Conlon is a reporter based at KMUW in Wichita, but serves as part of the Kansas News Service, a partnership of public radio stations across Kansas. She covers health, the social determinants of health and their connection to public policy.