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Archive for Saturday, August 4, 2012

Judge won’t dismiss suit over abortion rules

August 4, 2012

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Topeka— A Kansas judge refused Friday to dismiss a lawsuit filed by two doctors who are challenging new state regulations for abortion providers, enabling critics of the rules to present evidence at trial that they are unnecessary and burdensome.

Attorneys for state officials who could be required to enforce the new rules had asked Shawnee County District Judge Franklin Theis to uphold the regulations as valid without a trial. They argued that the state only must show it has a rational reason — protecting patients’ health — for imposing the special state health and safety regulations.

The judge ruled against the state after an hour-long hearing, saying a review of whether the regulations were reasonable touches on medical questions “way beyond common knowledge.”

The rules set minimum requirements for abortion providers’ staff and buildings, specify drugs and equipment they must have on hand, and require them to make their

records available for inspection at the state’s request. The regulations apply to any office, clinic or hospital that performs five or more elective abortions a month.

The state Department of Health and Environment imposed the regulations last year, weeks after the state enacted a law requiring providers to obtain an annual license. But the rules haven’t been enforced because of the lawsuit, and both sides expect the Kansas Supreme Court to ultimately settle the issue.

Attorneys for father-daughter physicians Herbert Hodes and Traci Nauser argued that a pretrial ruling in the state’s favor would unfairly prevent them from presenting evidence that could prove crucial when the Supreme Court reviews the case. Hodes and Nauser perform abortions at their office in the Kansas City suburb of Overland Park and filed the lawsuit.

During Friday’s hearing, Theis also questioned whether the health department’s administrative record spells out the justification for the rules.

“I have to say, ‘Whoops, where is it?’” the judge said. “That doesn’t exist here.”

The rules also require each abortion facility to have a physician as a medical director, and each doctor terminating pregnancies to have privileges at a hospital within 30 miles. Only doctors, nurses or physician assistants could administer medications, and procedure and recovery rooms would have to be kept at between 65 and 75 degrees. Patients would have to remain in a recovery room for up to an hour after an abortion.

Critics contend the rules are deliberately burdensome to discourage doctors’ offices and clinics from performing abortions. But supporters contend the rules will compel providers to fulfill promises that legal abortions will be safe.

Troy Newman, president of the anti-abortion group Operation Rescue, called Theis’ decision “pretty pathetic” and said the two doctors’ tactics against the regulations and dragging the case on endanger women.

Hodes and Nauser had also filed a separate lawsuit in federal court, but after winning an early order blocking the regulations, dropped it in favor of the lawsuit in state court. The defendants in the suit are Gov. Sam Brownback’s health secretary, Robert Moser, Attorney General Derek Schmidt and District Attorney Steve Howe in Johnson County, where the doctors have their office.

Stephen McAllister, a Lawrence attorney and Kansas University Law professor who serves as the state’s solicitor general, argued during the hearing that only the state’s highest court can settle some issues, such as whether the Kansas Constitution recognizes a right to privacy protecting access to abortion.

“The question is whether we want to go there sooner or later,” McAllister said. “The state’s view is, let’s get there now.”

The doctors’ attorneys said a quick pretrial ruling would bring legal issues to the Supreme Court “piecemeal” and could result in the case moving back and forth several times between Theis and the high court.

Comments

usesomesense 1 year, 8 months ago

Perhaps this is a silly question, but what are the statistics of the problem that are used as justification for the additional regulations? Is it really too hot in the recovery rooms? Don't get me wrong - I wouldn't choose abortion myself (although I really don't know if there were medical reasons what I'd choose) but this looks to me to be a huge waste of time unless there's really a problem. Furthermore why would it just apply to this situation? Maybe I'd want those regulations in place at any office that's using anaesthesia and a scalpel?!? I mean, if there's really a problem statistically speaking.

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Paul R Getto 1 year, 8 months ago

Good decision. Let both sides present their evidence.

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Mike1949 1 year, 8 months ago

Not getting personal here. The state doesn't want these laws out in the sunlight. Any decision will probably be found that the state of Kansas laws totally unconstitutional and unfair. They are just a tactic to make it so difficult to do a abortion in Kansas that most doctors won't even bother. The laws are clear proof of Republican abuse against all Kansans, especially women.

But isn't that what the republican party is all about? Taking away our freedoms? The party of "NO" strikes again!

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Shelley Bock 1 year, 8 months ago

While I agree with you on the legal position, I find that getting personal isn't appropriate for an anonymous comment.

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JackMcKee 1 year, 8 months ago

Actually that's incorrect. He's not good at it. He tried it numerous times but only succeeded once.

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JackMcKee 1 year, 8 months ago

One thing he is good at, stealing other men's opportunist wives.

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JackMcKee 1 year, 8 months ago

McAllister is only slightly worse as SG than he was as Dean. Which is much more than slightly pathetic. Too bad he has tenure.

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