Kansas abortion doctors sue to block state rules

[June 29, 2011]  TOPEKA, Kan. (AP) -- Two doctors who perform abortions in Kansas filed a federal lawsuit Tuesday to block a new licensing law and regulations that abortion rights advocates fear will make Kansas the first state in the country without an abortion provider.

Dr. Herbert Hodes and his daughter, Dr. Traci Nauser, argue that the new licensing process for abortion providers is a "sham" and that the law and accompanying regulations are designed to stop the state's three abortion providers, all of which are in the Kansas City area. Supporters of the law say it protects patients from substandard care.

The law takes effect Friday, and abortion providers that don't have a licenses by then won't be able to perform abortions under the Kansas Department of Health and Environment's new regulations. A final version of those rules was given to providers just last week.

"If you look at the process, it's hard to come to any conclusion other than it's stacked against the providers," said Bonnie Scott Jones, an attorney with the New York-based Center for Reproductive Rights, which represents the two doctors. "The process here is so extreme it's absurd."

Hodes and Nauser offer abortions and other services at the Center for Women's Health in Overland Park in suburban Kansas City, and their office was scheduled to be inspected by health department workers Wednesday. Their lawsuit, filed in U.S. District Court in Kansas City, Kan., said the doctors cancelled that inspection and asks a judge to immediately block the state from enforcing the law and regulations.

Another abortion provider, Aid for Women in Kansas City, was denied a license after acknowledging it would need extensive renovations to comply with the new regulations. The clinic is expected to file its own lawsuit Wednesday. Planned Parenthood of Kansas and Mid-Missouri's abortion clinic in Overland Park was inspected last week and has a license application pending, though it also is considering a legal challenge.

The health department had yet to respond Tuesday to an open records request from The Associated Press for a copy of the Planned Parenthood inspection report, but it provided a copy of a blank checklist used by its employees: an 18-page form with more than 200 items. Planned Parenthood declined to release the report.

Abortion providers and their backers don't trust the licensing process because it was backed by Gov. Sam Brownback, an anti-abortion Republican who took office in January, and abortion opponents pushed the law through the GOP-controlled Legislature.

The law requires abortion providers to obtain annual licenses, and the health department regulations tell providers what drugs and equipment they must have available. The rules also set other standards, such as requiring the rooms in which abortions are performed to have at least 150 square feet of space, excluding cabinets, and to remain between 68 and 73 degrees.

In their lawsuit, Hodes and Nauser said the new regulations are stricter than rules for other health care providers. The suit claims the state violated their right to due legal process.

But Mary Kay Culp, executive director of Kansans for Life, said the anti-abortion group wants the regulations in place because of a "dire need" to ensure clinic safety. She noted the law requires providers to report patients' abortion-related injuries to the state with 10 days and deaths, within 24 hours -- a policy she doesn't want to see unduly delayed.

She said abortion providers are acting like any business that wants to avoid regulation.

"Kansas abortion clinics claim that the state's attempt at oversight is `political' because of Governor Brownback, but their hypocrisy is on full display," she said.

Court documents show that Hodes sent an email June 21 asking the health department to consider waiving some of the rules and granting a provisional license while the idea was considered. A department official replied in 12 minutes, saying the law didn't permit either step.

"This is like living in a communist country, the way I was treated," Hodes told The Associated Press.

The licensing law was among a wave of anti-abortion proposals enacted this year in Kansas. Others taking effect Friday restrict private health insurance coverage for most abortions, require doctors to obtain written consent from parents before terminating minors' pregnancies and tighten restrictions on abortions after the 21st week of pregnancy, based on the disputed claim that a fetus can feel pain.

In addition, Planned Parenthood filed a lawsuit Monday over a provision in Kansas' next budget that will prevent its clinics from receiving federal family planning dollars for non-abortion services.

Hodes and Nauser filed their lawsuit against Robert Moser, the state's secretary of health and environment; Attorney General Derek Schmidt, whose office was involved in drafting the regulations; and the local prosecutor, Johnson County District Attorney Steve Howe. The health department declined to respond to the latest lawsuit, but Moser issued a statement Monday saying the licensing process was designed "to ensure Kansans receive the highest standard of care."

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The case is Hodes & Nauser, M.D.s, P.A., Herbert C. Hodes, M.D., and Traci Lynn Nauser, M.D., v. Robert Moser, M.D., Stephen Howe, and Derek Schmidt, No. 2:11-cv-02365-RDR-KGS.

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Online:

U.S. District Court for Kansas:
http://www.ksd.uscourts.gov/

Center for Women's Health:
http://www.hodesnauser.com/

Kansas Department of Health and Environment:
http://www.kdheks.gov/

Kansans for Life: http://www.kfl.org/

[Associated Press; By JOHN HANNA]

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