July 20, 2015 — Last week brought a development in the Center for Reproductive Rights' ongoing legal challenge against a 2011 Kansas TRAP law (SB 36) when a Kansas judge rejected the state's request to rule that the law is constitutional, the Topeka Capital-Journal reports (Shorman, Topeka Capital-Journal, 7/17). The state brought the claim hoping to address two of the legal arguments CRR has made against the law: that the law discriminates against women and that it violates the Constitution's equal protection clause. With the judge's ruling, both arguments will remain part of the ongoing legal challenge for further consideration (Women's Health Policy Report, 8/6).
According to the Capital-Journal, the case is ongoing and last week's ruling does not preclude the court from ruling in favor of the law in the future (Topeka Capital-Journal, 7/17).
The regulations -- which apply to any facility that performs more than five elective abortions monthly -- are part of a 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. CRR filed a legal challenge against the law on behalf of two abortion providers in the state, Herbert Hodes and Traci 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.
The Kansas Department of Health and Environment adopted the regulations in 2011, but they have been on hold because of the lawsuit. Both sides expect the Kansas Supreme Court to ultimately decide the matter (Women's Health Policy Report, 8/6).
After about an hour of oral arguments, Shawnee County District Judge Franklin Theis said he did not have enough information to agree with the state's claim that the law is constitutional, citing a lack of discovery and evidence in the case in his ruling and saying, "I don't think you can make a decision without learning the total picture."
According to the Capital-Journal, the law faces several different challenges. Sarah Warner, an attorney representing the state, said a ruling in favor of the state would have allowed the ongoing lawsuit to focus on the law's specific regulations rather than broader issues about the law itself (Topeka Capital-Journal, 7/17).