September 29, 2012

Legal obstacles remain before abortion clinic could open in Wichita

It’s been more than three years since legal abortions were performed in Wichita, and the Kansas Legislature has since rewritten many of the state’s abortion laws.

It’s been more than three years since legal abortions were performed in Wichita, and the Kansas Legislature has since rewritten many of the state’s abortion laws.

But would any of the new laws prevent the Trust Women Foundation from opening a clinic in Wichita?

Probably not, say those on both sides of the abortion debate.

The new laws place strict restrictions on abortions performed after 22 weeks of pregnancy, and they say that minors must now get the permission of both parents before getting an abortion.

But the toughest new law — one that would require the licensing and inspection of abortion clinics — is tied up in court and is likely to remain there for months.

If the licensing law survives a legal challenge, the Kansas Department of Health and Environment will regulate and inspect abortion clinics the way it regulates hospitals and day-surgery centers.

“We aren’t regulating abortion clinics now because of the (lawsuit),” said KDHE spokeswoman Miranda Steele.

Doctors who perform abortions are governed by the Kansas Board of Healing Arts. That board does not perform regular inspections of doctors’ offices.

While the licensing law was passed by an anti-abortion Republican Legislature and signed by an anti-abortion Republican governor, its fate could be decided by the Kansas Supreme Court, which is top-heavy with Democratic appointees.

Trust Women director Julie Burkhart said she is “preparing for the worst and hoping for the best” as she monitors the status of the licensing law while working to open the clinic at 5107 E. Kellogg in the building where the late physician George Tiller once performed late-term abortions. The clinic was closed after Tiller was murdered in May 2009.

Burkhart said the new clinic would offer a wide range of women’s medical services, though late-term abortions wouldn’t be among them. She said she realizes the environment has changed since the day Tiller was shot.

“We do have more hurdles to jump over, but we’re well aware of that and we will do our best to move over all those hurdles,” she said.

She said that for security reasons, she could not provide information about any doctors who might perform abortions. She hopes to open the clinic in 2013.

“We would like to be open sooner rather than later,” she said, “but we do not have a definite date.”

The lawsuit

The lawsuit challenging the licensing law, which it refers to in court papers as “the Regulatory Scheme,” was filed by the operators of two clinics in the Kansas City area. They contend that the law and its accompanying set of regulations would cause immediate harm to them and their clients.

“The Regulatory Scheme singles out the few Kansas physicians who provide abortions from among all other physicians in the state for the imposition of these burdensome and unjustified requirements,” the lawsuit says. “The discriminatory treatment and the specific requirements imposed by the Regulatory Scheme are unjustified by any legitimate goal, and they will serve only to punish and irreparably harm the physicians who provide and women who seek legal and constitutionally-protected abortion services.”

The lawsuit, which was filed by the Center for Women’s Health in Overland Park and the Aid for Women clinic in Kansas City, said the closest out-of-state clinic is in Columbia, Mo., and offers only limited first-trimester abortions. The nearest provider of second-semester abortions is a Planned Parenthood clinic in St. Louis, the lawsuit said.

The lawsuit said the proposed regulations would not only invade the patients’ rights to privacy, but also would impose regulations on abortion clinics that aren’t imposed on other health providers. They would, for example, require abortion clinics to replace medical assistants with physician assistants or nurses because medical assistants would no longer be able to administer medication to patients.

A Shawnee County judge in November issued a temporary restraining order that blocked the regulations from taking effect, and the state has since agreed not to try to enforce them while the case is being litigated.

Kathy Ostrowski, legislative director for the anti-abortion group Kansans for Life, said abortion clinics are not like doctors’ offices and should be regulated at least to the extent that outpatient surgery centers are regulated.

“It’s kind of upsetting that there are two standards — one for abortion and one for not-abortion,” she said. “We have sensible laws; they’re not onerous. If you know you’re not doing anything wrong, why do you care about a medical inspection?”

With the regulations now in legal limbo, she said, “there’s no law that has anybody inspecting anything.”

Ostrowski said the state’s abortion laws would be among the strictest in the nation if the licensing law was being enforced.

“If the law was in effect, I would say we would be in excellent shape,” she said. “Without it, I think we’re negligent.”

Stephanie Toti, a senior staff attorney for the Center for Reproductive Rights, represents the clinics in the lawsuit.

“On one hand, there’s no law that would prevent a doctor from opening up a facility that provides abortion services in Wichita,” she said. “(But) the general hostility of the legislation and the governor toward the performance of abortions creates an environment that discourages doctors from providing those services.

“I think it’s a really discouraging climate right now for doctors.”

Toti and Ostrowski both said they expect the Kansas Supreme Court to ultimately decide whether the law can be enforced.

Ostrowski said she thinks the case was moved from federal court, where it was originally filed, to state court so it would be heard by appellate judges who are open to abortion.

“They’re aiming at the Sebelius-dominated Supreme Court,” she said. “The only reason this was transferred is that the majority of the Kansas Supreme Court is sympathetic to abortion rights.”

Four of the seven Kansas Supreme Court justices were appointed by Democratic Gov. Kathleen Sebelius, and one was appointed by her Democratic successor, Mark Parkinson. The remaining two were appointed by Republican Gov. Bill Graves.

Toti said the case was being heard in state court because the plaintiffs are alleging that the proposed regulations violate the Kansas Constitution and Kansas laws.

“A federal court would not have jurisdiction to hear those claims,” she said. “Federal courts do not have the power to order state officials to comply with state law; only state courts can do that.“

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