Published June 30, 2011
Kansas faces a federal court challenge to new regulations for the state's three abortion providers, but its health department hasn't yet received the approval it needs from a normally obscure state board to enforce the rules as planned.
The Department of Health and Environment's rules could make Kansas the first state in the nation without a clinic doctor's office performing abortions. Providers have filed a federal lawsuit partly because they didn't see the current version of the regulations until last week -- less than two weeks before they were supposed to comply with them. The health department also hasn't taken public comments.
The department expected to get the go-ahead it needed for enforcement when the State Rules and Regulations Board met Thursday at the Statehouse. The action in theory would allow the rules to take effect Friday, but abortion providers hoped a federal judge would intervene and block enforcement of them and the licensing law under which the department is imposing them.
Supporters contend the licensing process and the new regulations will protect patients from substandard care. But legislators enacted the law lacking hard statistics on whether women having abortions face a significantly higher risk of complications and death than patients having surgical procedures in doctor's offices and clinics. Further, abortion rights advocates see the rules are a pretext for ending abortion services.
The law requires the state's three abortion providers to have a special license to terminate pregnancies as of Friday. The health department's regulations tell providers what equipment and drugs they must stock and establish space and temperature requirements for procedure and recovery rooms and set standards for evaluating patients.
The health department is using an expedited process to impose the rules for four months, until it solicits public comments and considers changes. Department officials contend the fast track is necessary because the law requires the licensing process to be in place by July 1.
The Rules and Regulations Board must sign off on temporary rules, though. Its five members include two legislators and representatives of the attorney general's, secretary of state's and secretary of administration's offices, all Republicans like Gov. Sam Brownback, who's a strong abortion opponent.
The non-legislators often send subordinates to the board's meetings, which rarely attract public attention, but Secretary of State Kris Kobach, also a law professor on leave, was attending Thursday. The board must find imposing rules without public comment first promotes "preservation of the public peace, health, safety or welfare."
"It's really ironic that the regulations have not even been given the final stamp of approval," said Cheryl Pilate, an attorney for one of the providers, the Aid for Women clinic in Kansas City, Kan., which was denied a license last week. "There really is no other word for it than, `absurd."'
The state's three abortion providers are all in the Kansas City area. Besides Aid for Women, there's the Center for Women's Health in the Kansas City suburb of Overland Park, and a Planned Parenthood of Kansas and Miy've also noted that Kansas shut down a Kansas City clinic in 2005 after finding unsafe conditions. They don't trust figures from various sources, including the federal Centers for Disease Control, suggesting serious complications and deaths are rare for women seeking abortions.
"I don't think you have to prove that some of these facilities are substandard or not," said Mary Spaulding Balch of the National Right to Life Committee. "I think you just have to show the state has in an interest in making sure they are not."