Telemedicine abortions may begin after judge blocks Kansas law banning procedure

Telemedicine abortions may soon be offered by a Wichita clinic after a judge in Topeka blocked enforcement of a Kansas law banning the procedure.

Shawnee County District Court Judge Teresa Watson granted a preliminary injunction on Wednesday, six months after the Kansas Court of Appeals reversed Watson's previous denial of a preliminary injunction. The Kansas Supreme Court previously declined to hear the appeal.

Watson's brief order did little more than outline that she was bound by the mandate of the appellate court.

Last week's ruling stops short of declaring the telemedicine abortion ban unconstitutional, which has happened in a case brought by a different clinic, but suggests such a ruling could come as the legal process continues. It means that Sedgwick County District Attorney Marc Bennett and outgoing Attorney General Derek Schmidt cannot enforce the ban against Trust Women's clinic in Wichita.

"This decision will further open up abortion care in Kansas at a time it’s urgently needed," said Nancy Northup, president and CEO of the Center for Reproductive Rights, in a statement. "In this post-Roe world, telemedicine can make the difference in being able to receive abortion care or not."

Kansans for Life, the state's leading anti-abortion organization, pointed to the proposed constitutional amendment as a way to keep abortion restrictions in place.

"We’re sickened to watch another commonsense abortion limit be blocked by a judge after a law was challenged by the abortion industry, which consistently puts its own profits and convenience ahead of women's health and safety," said Jeanne Gawdun of Kansans for Life.

The Center for Reproductive Rights said medication abortion is "extremely safe whether provided in-person or by telemedicine."

Expanding abortion access in Kansas and beyond

Abortion rights advocates have long challenged the law in the hopes of expanding access via telemedicine to rural Kansas and areas outside the Wichita and Kansas City metros. The state has five abortion clinics, with two in Sedgwick County, two in Johnson County and one in Wyandotte County.

For Topeka women and girls, the nearest clinic to access abortion care is a new Planned Parenthood clinic in Kansas City, Kan., that opened this summer. The clinic also serves a large number of out-of-state patients, especially with abortion banned across much of the region after the U.S. Supreme Court overturned Roe v. Wade.

More:Planned Parenthood opened a new clinic in Kansas as surrounding states ban abortion

"Expanding access to abortion care through telemedicine is a critical component of addressing the health care needs of our region, especially in the face of the manufactured health care crisis caused by abortion bans in Texas and Oklahoma, and backed by the disastrous decision by the Supreme Court in Dobbs," Rebecca Tong, co-executive director of Trust Women, said in a statement.

In court documents, Tong said Trust Women's clinic in Wichita is seeing 70% more patients per month than a year ago, and providers expect that number to continue to increase. The clinic went from 10 out-of-state patients per month last year to 200 out-of-state patients this August.

Those increases only includes patients who receive care and doesn't reflect the increased demand among women and girls who were unable to access care.

Telemedicine would also alleviate the shortage of doctors who perform abortions by allowing patients to go to a clinic in-person while meeting with a physician in another state. Trust Women said in court documents that it is difficult to recruit physicians who live in Kansas due to stigma, "protesters outside the clinic that harass both patients and staff" and the 2009 murder of George Tiller.

With an injunction, Trust Women plans to transition "all or nearly all" medication abortions to telemedicine. Medication abortions are provided up to 11 weeks using the drugs misoprostol and mifepristone. Restarting the telemedicine program would allow the clinic to offer more appointments and at more flexible times.

"Sadly, pregnant women will be endangered by this ruling, the abortion industry will profit off the destruction of more innocent babies, and other abortion limits are just a few court filings away from also being removed," Gawdun said.

More:Kansas abortion clinics are highly regulated. Will access change in the future?

Expanding access after Value Them Both Amendment

Telemedicine abortions have been subject to an ever-changing web of laws, regulations and court orders over the past decade.

Trust Women briefly offered telemedicine abortions in 2018 after a separate court case suggested it was legal. That changed after Kansans for Life went after the licenses of the Trust Women doctors who performed telemedicine abortions, prompting the provider to stop offering the procedure and initiate its own time-consuming litigation.

Since then, the Kansas Supreme Court ruled in 2019 that the state constitution's bill of rights includes bodily autonomy and thus protects the right to an abortion. Meanwhile, state-level protections for abortion jumped to the forefront in June when the U.S. Supreme Court overturned the landmark decision in Roe v. Wade.

More:SCOTUS overturning Roe v. Wade renews pressure on Kansas same-sex marriage ban, sodomy law

Enshrining abortion rights in the constitution makes it far more difficult for laws restricting abortion access to survive a court challenge. Some critics of the decision fear the strict scrutiny standard would be impossible to overcome, meaning no abortion restriction would pass constitutional muster.

"Today's ruling confirms that every existing abortion limit can now be blocked or struck down due to the extreme 2019 Hodes ruling from the Kansas Supreme Court," Gawdun said.

More:Despite rejection in election, Kansas anti-abortion groups vow 'we are not going anywhere'

Watson herself has rejected that notion, previously writing that "strict scrutiny analysis is not necessarily 'fatal in fact' to all legislative efforts." Watson was appointed by former Republican Gov. Sam Brownback.

Attorney General-elect Kris Kobach has also vowed to defend abortion laws.

"That will be more difficult in the wake of the Aug. 2 vote on the Value Them Both Amendment," Kobach said during a debate. "But it's not impossible at all."

The Supreme Court's interpretation prompted anti-abortion groups to propose the so-called Value Them Both Amendment. While activists said the intention was to protect existing abortion restrictions, critics said the proposed amendment's language also would have allowed Republican supermajorities in the Legislature to ban abortion.

Kansas voters overwhelmingly rejected the amendment at the Aug. 2 primary.

This article originally appeared on Topeka Capital-Journal: Kansas judge blocks ban on telemedicine abortion procedure