Kan. judge won't dismiss suit over abortion rules

By John Hanna

Associated Press

Published: Friday, Aug. 3 2012 5:00 p.m. MDT

Stephen McAllister, left, representing Kansas officials, follows a judge as he rules from the bench, refusing to dismiss a lawsuit against special state regulations for abortion providers, Friday, Aug. 3, 2012, in Shawnee County District Court in Topeka, Kan. Also following the judge's ruling are Sarah Warner, center, another attorney for the state, and Teresa Woody, an attorney representing two doctors who filed the lawsuit.

John Hanna, Associated Press

TOPEKA, Kan. — 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 will touch 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 University of Kansas 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.

Also, Bonnie Scott Jones, an attorney for the New York-based Center for Reproductive Rights, said Hodes and Nauser want to ensure that their evidence is in the record before the Supreme Court.

"Before someone makes a big legal ruling, you want them to have the whole story," she said after Friday's hearing.

Follow John Hanna on Twitter at www.twitter.com/apjdhanna

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