Topeka Kansas Gov. Sam Brownback’s administration plans to enact new regulations for abortion providers, possibly identical to ones blocked by a federal judge, and providers appear likely to challenge them in court.
The Kansas Department of Health and Environment already had plans for a new set of rules even as it finished regulations that would have taken effect Friday. The agency described the first set as temporary, which allowed it to avoid taking public comments and get the rules in place within weeks, though they could remain in effect afterward for only four months. The next set of rules would be considered permanent and require public comment.
A new state law requires abortion providers to obtain a special annual license from the health department. The agency’s accompanying regulations would tell providers what drugs and equipment they must stock, require them to make patients’ medical records available for inspection, establish qualifications for staff, set minimum sizes for some rooms and limit the temperatures in procedure and recovery rooms.
U.S. District Judge Carlos Murguia, in Kansas City, Kan., has blocked enforcement of the temporary regulations and sections of the law requiring abortion providers to obtain annual licenses. Murguia’s ruling Friday will remain in effect as litigation continues in a federal lawsuit involving two of the state’s three providers.
Dr. Robert Moser, secretary of health and environment and a Brownback appointee, said his department respected the ruling and would “follow the law.”
But Moser added: “Judge Murguia’s ruling is narrowly tailored and does not prevent KDHE from moving forward to establish permanent licensing regulations.”
Supporters argue such rules protect patients from substandard care. Abortion rights advocates see them as unnecessary and designed to keep clinics and doctor’s offices from offering abortion services. They don’t trust the state’s licensing and rule-making because Brownback is an anti-abortion Republican, and abortion foes pushed the licensing law through the GOP-dominated Legislature.
Department officials have said their proposed permanent rules are identical to the temporary ones blocked by Murguia. Cheryl Pilate, an attorney for the Aid for Women clinic in Kansas City, Kan., said if the department makes few or no changes, providers will challenge the next set “for the very same reasons.”
“Those would certainly be taken up into the lawsuit,” she said.
Need for speed
Department officials contend the licensing law required them to have regulations in place by July 1 and to insist that providers comply, even though Brownback didn’t sign the licensing law until May 16. The last draft of the temporary rules was dated June 17.
But to move so quickly, the department needed the permission of the State Rules and Regulations Board, made up of two legislators and representatives of the attorney general’s, secretary of state’s and secretary of administration’s offices. The board approved the rules Thursday, but Kansas limits the lifespan of temporary regulations to 120 days, meaning those abortion rules expire after October.
And so the department also published a notice Thursday that it was proposing permanent rules, setting a public hearing for Sept. 7 in Topeka and preparing to consider suggested changes.
Moser said after Murguia’s ruling: “As a physician, I will oversee the process to insure that the permanent regulations are in the best interests of Kansas patients.”
Pilate said she’d expected the department to move ahead. She said she hopes it will consider information from providers and act with “greater reflection.”
“We would certainly plan to contribute significantly to the public record,” she said. “I hope that the public comment session is more than lip service to due process.”
The new state law requires any hospital, clinic or doctor’s office to obtain the special abortion license if it performs five or more elective, first-trimester abortions a month or any abortions at or after the 13th week of pregnancy. The license is held by the facility, not a doctor, and it’s not necessary if the facility performs abortions only to save a woman’s life or prevent “substantial and irreversible” harm to “a major bodily function.”
The first set of health department regulations would require abortions to be performed in rooms with at least 150 sq. feet of space, excluding fixed cabinets, kept at between 68 and 73 degrees. Each procedure room also would have to have its own janitor’s closet with at least 50 sq. feet. Any patient would have to remain in a recovery room for at least two hours.
The rules are stricter than abortion providers now face. Murguia said at least two patients faced “irreparable harm,” along with the two providers involved in the lawsuit, Aid for Women and the Center for Women’s Health, in the Kansas City suburb of Overland Park. They didn’t receive abortion licenses and would have had to stop terminating pregnancies.
The state’s third provider, a Planned Parenthood of Kansas and Mid-Missouri clinic, also in Overland Park, already is licensed by the health department as one of 74 ambulatory surgical centers. It received an abortion license Thursday — after being initially denied and undergoing a second inspection.
Aid for Women and the Center for Women’s Health are among dozens of offices and clinics performing surgical procedures that are covered by less detailed rules from the State Board of Healing Arts, which licenses and regulates doctors.
In his ruling, Murguia said there’s a substantial likelihood Aid for Women, the Center for Women’s Health and their doctors will show that the state violated their constitutional right to due legal process. The judge also questioned whether the state has evidence yet that its new rules were “rationally related” to protecting patients.
“They do very little to ensure equitable health care for Kansas women,” said Julie Burkhart, founder of the abortion rights political action committee Trust Women. “Rather, these regulations prevent pregnant women from receiving quality health care.”
Abortion opponents noted Murguia himself said the record in the lawsuit is “not fully developed” and predicted additional evidence will make the case for the regulations. But Troy Newman, president of Operation Rescue, accused the judge of “thwarting the will of the people.”
“Do not underestimate the resolve of the pro-life movement,” Newman said. “For us, this is a matter of life or death for innocent children, and so we will not relent. We will not rest. We will not give up until every baby is saved.”