Kansas Judge Rules Telemedicine Abortions Can Continue

Jan 2, 2019

A judge ruled Monday that Kansas cannot stop telemedicine abortions, thwarting the latest attempt by state lawmakers to prevent doctors from providing pregnancy-ending pills to women they see by remote video conferences.

District Judge Franklin Theis ruled that a law barring telemedicine abortions and set to take effect in January has no legal force. During an earlier hearing, Theis derided the law as an "air ball" because of how lawmakers wrote it.

That law was challenged in a lawsuit filed by the Center for Reproductive Rights on behalf of Trust Women Wichita, which operates a clinic that performs abortions and provides other health care services.

Theis also ruled that other, older parts of the state's abortion laws that could ban telemedicine abortions are on hold indefinitely because of a separate lawsuit challenging them that's still pending.

The Wichita clinic began offering telemedicine abortions in October because its doctors live outside Kansas and could be on site only two days a week. It also hopes to provide the pills to women in rural areas and have them confer by teleconference with doctors.

The center argues that banning telemedicine abortions violates the state constitution by placing an undue burden on women seeking abortions and singling out abortion for special treatment when state policies intend to encourage telemedicine. Kansas has no clinics that provide abortions outside Wichita and the Kansas City area.

"That procedure by telemedicine is going to be legal after midnight (Monday), and the clinic will continue to offer it," said Bob Eye, one of the attorneys for Trust Women. "This is a good outcome."

The anti-abortion group Kansans for Life, influential with the Republican-controlled Legislature, contends telemedicine abortions are dangerous. But 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.

Mary Kay Culp, executive director of Kansans for Life, called Theis' ruling "infuriating."

"This judge has a long history of taking laws designed by the Legislature to protect unborn babies and women and turning them into laws that instead protect the abortion industry," Culp said.

Seventeen other states have telemedicine abortion bans, according to the Guttmacher Institute, a group that advocates for abortion rights.

The 2018 law represents the third time Kansas legislators passed a measure meant to outlaw telemedicine abortions.

In 2011, a ban was part of legislation imposing special regulations on abortion clinics that critics argued were meant to shut them down. Providers sued, and Theis blocked all of the regulations. The case is still pending.

Legislators passed another version of the telemedicine abortion ban in 2015, but Theis ruled Monday that it also is covered by his order blocking the 2011 clinic regulations. He called that 2011 injunction a "safe harbor" for the clinic.

The 2018 law says that in policies promoting telemedicine, "nothing" authorizes "any abortion procedure via telemedicine." Theis concluded that it's toothless because it does not give prosecutors a way to bring a criminal case over a violation. He said in his order Monday that it "has no anchor for operation" essentially rendering the clinic's lawsuit moot.

The Kansas health department has reported that in 2017, the latest data available, nearly 4,000 medication abortions were reported, or 58 percent of the state's total, all in the first trimester. It's not clear how many of them were telemedicine abortions.

While abortion opponents have a long list of legislative victories over the past decade, they've fared less well in the courts. The U.S. Supreme Court recently refused to hear an appeal of lower federal court orders barring Kansas from stripping Medicaid funds for non-abortion services provided by Planned Parenthood.

The state's first-in-the-nation ban on a common second trimester procedure anti-abortion lawmakers called "dismemberment abortion" has been on hold since 2015. In that case, the Kansas Supreme Court has yet to decide whether the state constitution protects abortion rights independently of the federal constitution so that state courts could chart their own, more liberal course.