Topeka The chief federal judge in Kansas refused Sunday to temporarily block parts of a new state abortion law, including a requirement that providers’ websites link to a state site with information they dispute.
But U.S. District Judge Kathryn Vratil’s ruling Sunday in a lawsuit filed by Planned Parenthood came after a state judge ruled Friday in a separate challenge that Kansas couldn’t enforce the website requirement for now. Vratil noted the previous ruling, in a case filed by two doctors, in concluding that Planned Parenthood would not suffer irreparable harm if she didn’t do the same. The rule was to take effect today.
Under the law, a provider’s home page will have to provide a link to a Kansas Department of Health and Environment site on abortion and fetal development and contain a statement that the state’s information is “objective” and “scientifically accurate.” Abortion providers object because the state’s information says that a fetus can feel pain by the 20th week of pregnancy, while the American Congress of Obstetricians and Gynecologists has said there’s no evidence for such an assertion.
Supporters of the new requirement contend it ensures that women who are considering abortions have access to multiple sources of information about fetal development, the risks of abortion and alternatives to it.
“Women have a right to know that information,” said Mary Kay Culp, executive director of Kansans for Life, the most influential anti-abortion group at the Kansas Statehouse.
She said of abortion providers: “They scream, ‘The sky is falling,’ no matter how reasonable the bill is.”
The website rule is part of a sweeping law approved by Kansas legislators this year that also bans sex-selection abortions, blocks tax breaks for providers, prohibits providers from furnishing materials or instructors for public schools’ classes and declares as a general policy that life begins “at fertilization.” Planned Parenthood didn’t challenge those parts of the law.
Abortion providers contend requiring them to declare that the state provides accurate and objective information on its website about abortion and fetal development violates their free-speech rights. Planned Parenthood is pursuing its federal lawsuit on behalf of a clinic in the Kansas City suburb of Overland Park that performs abortions and the clinic’s medical director.
Peter Brownlie, president and chief executive officer of Planned Parenthood of Kansas and Mid-Missouri, which operates the Overland Park clinic, declined to comment, saying his organization had not had time to examine Vratil’s ruling.
Planned Parenthood had asked Vratil to keep the state from enforcing the website requirement while its lawsuit proceeds.
It also challenged a requirement that before doctors can perform abortions, patients must receive information containing a statement about the fetus’ ability to feel pain. Vratil concluded that “at this point in the litigation,” the objectivity of the information is “an unresolved question of fact.”
Kansas already restricts abortions after the 20th week following fertilization, with the law declaring “there is substantial medical evidence” that a fetus can feel pain by then. Legislators who enacted those restrictions said they relied on research from numerous studies.
“One has to look to experts and specialists in the research field of fetal pain to get accurate information on that subject, which is exactly what is happening in state legislatures,” Culp said.
But in a June 20 statement, the American Congress of Obstetricians and Gynecologists said a rigorous 2005 study in the Journal of the American Medical Association concluded that it’s unlikely a fetus perceives pain that early, adding, “no studies since 2005 demonstrate fetal recognition of pain.”
“The best health care is provided free of governmental interference in the patient-physician relationship,” the statement said.
The state-court lawsuit was filed by Dr. Herbert Hodes and his daughter, Dr. Traci Nauser, who terminate pregnancies at their health center, also in Overland Park. Their litigation challenged the entire abortion law enacted this year.
Shawnee County District Judge Rebecca Crotty said most of the law could be enforced as of Monday, but her order blocking the website rule will stay in effect until the doctors’ lawsuit is resolved.
In her decision Sunday, Vratil said it’s “a close question” whether the website rule is “narrowly tailored” to meet the state’s interest of ensuring that patients are well-informed. The federal judge said because many non-patients also visit Planned Parenthood’s website, the rule “appears overbroad,” and she said there’s a substantial likelihood that Planned Parenthood will succeed in its legal challenge to the rule.
But Vratil still declined to issue an order blocking the state from enforcing the requirement. She said that because of Crotty’s ruling, Planned Parenthood couldn’t show that its clinic and medical director, named as parties in the lawsuit, would be “irreparably harmed.”