Kan. abortion rules face test in federal court

Kansas still has one abortion provider, but two others that don't have state licenses were hoping to persuade a federal judge to block a new licensing law and health department regulations they consider burdensome.

The state attorney general's office argued ahead of a Friday hearing in U.S. District Court in Kansas City, Kan., that a license granted to a Planned Parenthood of Kansas and Mid-Missouri clinic disproves critics' contention that the new Kansas rules are designed to cut off access to abortion.

The licensing law was part of a wave of anti-abortion legislation enacted across the nation this year, but had none of its three providers received a license, Kansas would have been the only state in the nation without a clinic or doctor's office performing abortions.

Its regulations tell providers what drugs and equipment they must stock, set acceptable temperatures for procedure and recovery rooms and set minimum sizes for some rooms. Supporters believe those rules will protect patients. But abortion-rights advocates have called the licensing process a "sham" because Gov. Sam Brownback is an anti-abortion Republican, and abortion foes pushed the law through the GOP-controlled Legislature.

Planned Parenthood received a license Thursday from the Kansas Department of Health and Environment, after initially being denied but having inspectors visit its clinic in Overland Park a second time. The new licensing law and the accompanying regulations, drafted over a few weeks, took effect Friday.

The lawsuit before U.S. District Judge Carlos Murguia was filed earlier this week by Drs. Herbert Hodes and Traci Nauser, who provide abortions and other services at the Center for Women's Health, also in Overland Park. The state's other provider is the Aid for Women Clinic in Kansas City, and it's seeking to intervene.

The attorney general's office attached the Planned Parenthood license in a court document filed Thursday evening, shortly after the health department confirmed it had granted a license to one of the state's providers and Planned Parenthood identified itself as the recipient.

"Women in Kansas seeking abortion services will still be able to obtain medical care at a properly licensed facility even if the statute and regulations are enforced exactly as written," the attorney general's office said.

But Bonnie Scott Jones, an attorney for the New York-based Center for Reproductive Rights, which is representing Hodes and Nauser, said the state still has a "crazy process" that involved abortion opponents rushing unreasonable regulations into place.

As for Planned Parenthood's license, she said, "That's certainly better than no one being open, but it's certainly not enough to meet the needs of the women of Kansas."

She also noted that the Planned Parenthood clinic already was regulated by the health department as one of the state's 74 ambulatory surgical centers. Those centers face more detailed rules than dozens of clinics and doctor's offices performing surgical procedures, which are covered by rules from the State Board of Healing Arts, which licenses physicians.

Both Aid for Women and the Center for Women's Health fall under the office-based surgery rules, and their doctors argue that those standards are strong enough to protect patients. Those rules don't set minimum sizes for rooms, for example.

Besides objecting to the content, the providers argue that the state violated their right to due legal process by imposing the rules so quickly. The department argues the licensing law mandated a fast track.

Brownback signed the licensing law in mid-May; the providers received the current version of the regulations less than two weeks before they took effect. A state board approved the rules Thursday, allowing them to take effect.

The department hasn't taken public comments on the regulations though it has scheduled a Sept. 7 hearing in Topeka and plans to consider suggested changes.

Among other things, the Kansas regulations for abortion providers require rooms where abortions are performed to have at least 150 sq. feet of space, excluding fixed cabinets, and to keep their temperatures between 68 and 73 degrees. Each procedure room also must have its own janitor's closet with at least 50 sq. feet. Also, any patient must remain in a recovery room for at least two hours.

Aid for Women was denied a license without an inspection after it disclosed in its application that the clinic required extensive renovations to comply with the new rules.

The Center for Women's Health cancelled its inspection after Hodes and Nauser filed their lawsuit. In that document, they acknowledged that none of its six procedure rooms were big enough to comply with the regulations, nor did they have enough janitorial closet space.

Planned Parenthood said it had been denied a license Monday, and it was certain enough that it wouldn't get one by Friday that it filed its own lawsuit Thursday in federal court, also in Kansas City. The lawsuit said the Planned Parenthood clinic met most requirements and could comply with others.

Court documents also disclosed that the clinic was still in contact with the health department, trying to show that it would comply with all regulations. The license granted to Planned Parenthood is good for a year, the term specified by law.

President and CEO Peter Brownlie said he expects the Planned Parenthood chapter to withdraw its lawsuit and work to change the regulations.

---- Online: Kansas Department of Health and Environment: http://www.kdheks.gov/ Center for Reproductive Rights: http://reproductiverights.org/

(Copyright 2011 by The Associated Press. All Rights Reserved.)