Topeka Kansas officials drafted new regulations for abortion providers without independently compiling data or studies on how the new rules would make the procedures safer for the women seeking them, and attorneys for providers expect the apparent lack of such research to be a central issue in a federal lawsuit challenging the rules.
Teresa Woody, a Kansas City, Mo., attorney representing two Kansas doctors who perform abortions, said Friday that the providers don't think the state can show it has a medical justification for the new regulations. The rules tell providers what drugs and equipment they must stock and set requirements for room sizes and temperatures, among other things.
The rules were supposed to take effect July 1, but U.S. District Judge Carlos Murguia, in Kansas City, blocked their enforcement until the lawsuit is resolved. After an initial hearing, Murguia questioned whether the state had compiled evidence showing the Kansas Department of Health and Environment's rules were "rationally related" to protecting patients.
The Associated Press then filed an open records request, seeking a copy of studies, reports or summaries of data compiled by the department's staff from Jan. 1 through early July, or summaries of existing data or studies used in drafting the regulations. A response said the department "has no document that meets this request."
"We don't think any of these regulations are medically necessary," Woody told The Associated Press. "If they have research out there that shows the regulations are medically necessary, we haven't seen it."
Health department officials have said they based their regulations on rules from other states, most notably Arizona and Texas. KDHE spokeswoman Miranda Myrick said Friday that both state and federal guidelines for hospitals, clinics and other facilities are based on an assumption that they will "result in a higher level of care."
"In developing these regulations, KDHE looked to resources that used established, industry-accepted standards of care in clinical settings that have been developed over many years," she said in an email, adding that such standards are "grounded in evidence."
Woody filed notices in federal court this week disclosing that the providers' attorneys plan to question health department officials and members of the attorney general's staff in September. Those to be interviewed include Joseph Kroll, the director of the KDHE bureau that drafted the regulations, and KDHE Secretary Robert Moser.
She also filed a notice that both the health department and attorney general's office had received a list of questions and a demand to produce documents. Court filings show the providers' attorneys want to question officials about the steps they took to research their regulations.
"It obviously goes to proving our case that it's an undue burden," Woody said.
The health department drafted its regulations under a law requiring hospitals, clinics and doctor's offices to obtain a special, annual license if they perform five or more elective abortions a month. Gov. Sam Brownback signed the law May 16. The department had a final draft of its regulations ready June 17 — and told providers they had to comply by July 1, when the law took effect.
Two of Kansas' three abortion providers were denied licenses under the new regulations. A Planned Parenthood clinic in Overland Park received one, but it was already regulated by the health department as an ambulatory surgical center. All three clinics are in the Kansas City area.
Woody represents Drs. Herbert Hodes and Traci Nauser, his daughter, who provided abortion services at the Center for Women's Health in Overland Park. The third clinic, Aid for Women in Kansas City, also is involved in the lawsuit, along with its physician, Ronald Yeomans.
Health department officials said the law forced them to work quickly and gave them no discretion to waive any requirements. The providers' lawsuit argues that the state violated their right to due legal process.
Brownback is an anti-abortion Republican, and abortion-rights supporters contend the real goal behind the regulations was keeping clinics and doctor's offices from terminating pregnancies.
The governor's office has said Brownback, his chief of staff and his policy director did not communicate with Kroll while the regulations were being drafted. Caleb Stegall, chief counsel for both Brownback and the health department, declined to release his own communications with Kroll.
An open records request from The AP for communications between Attorney General Derek Schmidt's staff and the health department is pending. Schmidt's office declined to comment Friday because the lawsuit is pending.