Fate of Kansas’ ban on telemedicine abortions uncertain
photo by: Shutterstock Photo
Topeka — Kansas clinics still don’t know whether it will be legal for them to offer telemedicine abortions in January, even though a state-court judge on Friday derided an upcoming ban as an “air ball” that can’t stop doctors from providing pregnancy-ending pills to patients they don’t see in person.
An abortion rights group seeking an order to block the ban found its request enmeshed in larger legal battles over abortion. Attorneys for the state raised the question of whether other state laws might block telemedicine abortions, and District Judge Franklin Theis held off on issuing an order.
The Center for Reproductive Rights filed a lawsuit last month on behalf of Trust Women of Wichita, which operates a clinic there that performs abortions. Since October, some patients seeking abortion pills have consulted with off-site doctors through teleconferencing, and the clinic hopes to start providing abortion pills to women in rural areas without having them come to Wichita.
The center argues that the new law violates the state constitution by placing an undue burden on women seeking abortion and singling out abortion for special treatment as part of broader policies otherwise meant to encourage telemedicine.
“The use of telemedicine right now for medication abortions is extremely important,” said Leah Wiederhorn, an attorney for the center. “It’s a way for women to access this type of health care during a time when there are a lot of hostile laws that are meant to shut down clinics across the country.”
Seventeen other states have telemedicine abortion bans, according to the Guttmacher Institute, a group that advocates for abortion rights. The new Kansas law says that in policies promoting telemedicine, “nothing” authorizes “any abortion procedure via telemedicine.”
But Theis said the law doesn’t give a prosecutor any avenue for pursuing a criminal case. Although the state medical board could act against the clinic’s doctors, the judge added, “There’s no jeopardy yet.”
Kansas has no clinics providing abortions outside Wichita and the Kansas City area. The Republican-controlled Legislature has strong anti-abortion majorities and the state has tightened restrictions over the past decade.
Lawmakers have tried three times to ban telemedicine abortions. In 2011, a ban was part of legislation imposing special regulations on abortion clinics that critics said were meant to shut them down. Providers sued and Theis blocked all of the regulations. The case is still pending.
Legislators passed a law in 2015 requiring a doctor to be in the same room when a woman takes the first of two abortion pills. The Center for Reproductive Rights argues that it’s covered by the 2011 lawsuit over clinic regulations and has been blocked by Theis. Though the judge said he’s inclined to agree, state attorneys argued that it is in effect, even if it hasn’t been enforced.
The anti-abortion group Kansans for Life filed a complaint Friday against the Wichita clinic with the state medical board, asking it to investigate its “illegal” telemedicine abortions. Jeanne Gawdun, the group’s senior lobbyist, called them “dangerous.”
“Where’s that important physician-patient relationship?” Gawdun said. “It’s not there.”
A study of abortions in California, published in the American College of Obstetricians and Gynecologists’ journal in 2015, said less than one-third of 1 percent of medication abortions resulted in major complications.
The Kansas health department has reported that in 2017, nearly 4,000 medication abortions were reported, or 58 percent of the state’s total, all in the first trimester. It’s not clear if any were telemedicine abortions.
Wiederhorn said banning telemedicine abortion would be a hardship for the clinic’s patients because its doctors, though licensed in Kansas, are outside the state and can spend only two days a week in Wichita. Also, many women in rural areas would face hardships in getting medication abortions without telemedicine, she said.
But Assistant Attorney General Shon Qualseth said: “We’re just theorizing on what could happen.”