June 27, 2013

Kansas judge weighs KC area doctors’ challenge to abortion law

Physicians Herbert Hodes and Traci Nauser want the law blocked before it takes effect July 1. This case is broader than one heard in federal court Wednesday.

Allowing Kansas to enforce a sweeping new anti-abortion law while a lawsuit against it is pending would respect the democratic process, an attorney for the state said Thursday during a court hearing on whether the law should be put on hold temporarily.

Shawnee County District Judge Rebecca Crotty heard arguments Thursday in a lawsuit filed by physician Herbert Hodes and his daughter, physician Traci Nauser, who perform abortions at their Overland Park health center. The law is set to take effect Monday, and Crotty said she expects to rule on temporarily blocking parts or all of it before then.

The law bans sex-selection abortions, blocks tax breaks for abortion providers and prohibits them from furnishing materials or instructors for public schools’ sexuality courses. It spells out in greater detail what information must be provided to patients before their pregnancies can be terminated, including a statement that abortion ends the life of a “whole, separate, unique, living human being.”

Hodes and Nauser argue the restrictions violate their right to equal legal protection guaranteed by the Kansas Constitution. They’re also seeking a ruling that a declaration in the new law that life begins “at fertilization” is merely a statement and not an attempt to regulate abortion — as supporters have insisted.

But Sarah Warner, a Lawrence attorney representing the state, said physicians have long been subject to reasonable regulations of their practices. And, she said, the courts in Kansas presume going into lawsuits that laws are constitutional — making an order to block their enforcement “extraordinary” and “drastic.”

“The people’s representatives have come together and passed the law,” Warner said. Later, she added, “You have a Legislature that’s passed this through a democratic process.”

Teresa Woody, a Kansas City attorney representing Hodes and Nauser, told Crotty that the doctors and their patients will be irreparably harmed if the law is enforced as the lawsuit proceeds.

She said the measure would make it unduly difficult to obtain abortions and stigmatizes both providers and their patients. She said blocking tax breaks for abortion providers — for example, requiring them to pay sales tax on their medications and equipment when other doctors don’t — subjects them to a special, unfair tax.

“The courts are not here to rubber stamp unconstitutional laws, no matter how they came into being,” Woody said.

The hearing in Shawnee County came a day after the chief federal judge in Kansas heard arguments in a lawsuit filed by Planned Parenthood, which performs abortions at its Overland Park clinic. The federal case in Kansas City, Kan., is narrower, attacking only provisions spelling out the information patients must receive before their pregnancies are terminated.

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