Details spur lawsuits against new Kansas abortion law

Anti-abortion leaders who helped push now-challenged restrictions through the Kansas Legislature this session say they’re taken aback by an attack on new rules for providers’ websites.

A state judge Friday temporarily blocked a requirement that was set to take effect Monday, requiring providers to link to a Kansas Department of Health and Environment site on abortion and fetal development. It’s one of many provisions of the sweeping law, passed in April, that’s being challenged in a lawsuit by two Overland Park abortion doctors.

Abortion opponents say the state’s four providers already link to the same site. But the crux of the issue is about specifics, proving that details matter to both sides.

Under the law, providers must link to the KDHE site from their home pages and include a statement that the information is “objective” and “scientifically accurate.” Kansans for Life, the most influential anti-abortion group at the Statehouse, view that as part of a larger effort to make sure women have multiple sources of information about abortion, its risks and its consequences.

Providers say they’re being forced to distribute anti-abortion statements they dispute, including one that says a fetus can feel pain by the 20th week of pregnancy. The American Congress of Obstetricians and Gynecologists said in a June 20 statement that a rigorous 2005 study in the Journal of the American Medical Association concluded that it’s unlikely a fetus perceives pain that early, adding, “no studies since 2005 demonstrate fetal recognition of pain.”

“While it seems like a small deal and a handful of words in a statute, it is a big deal,” said Peter Brownlie, president and chief executive officer of Planned Parenthood of Kansas and Mid-Missouri, which performs abortions at its clinic in the Kansas City suburb of Overland Park.

The provision is being attacked on two fronts. Planned Parenthood has filed a federal lawsuit, and Overland Park abortion providers Dr. Herbert Hodes and his daughter, Dr. Traci Nauser, filed a state lawsuit in Shawnee County, the one resulting in Friday’s ruling.

In hearings last week in federal and state court, the state’s lawyers questioned why the mandate was important to Hodes, Nauser and Planned Parenthood now, well after they’d been linking to the health department’s site voluntarily.

Other parts of the law garnered more debate as it was being passed, as it also bans sex-selection abortions, blocks tax breaks for providers, prohibits them from furnishing materials or instructors for public school sexuality courses and declares, as a policy statement, that life begins “at fertilization.”

Rep. Jan Pauls, a socially conservative Hutchinson Democrat who supported the new law, said the website requirements were part of the House’s contentious debate “kind of in passing.”

“I didn’t think it was anything, really,” she said.

Kansas enacted an “informed consent” abortion law in 1997, which gives women considering abortions written material about fetal development. Until this year, the law didn’t mention the Internet, except to say that the health department had to publish its materials online.

“In 1997, when this first passed, there wasn’t any Internet,” said Mary Kay Culp, executive director of Kansans for Life.

But it’s become a convenient way for abortion providers to link women with the state’s materials – significant because in Kansas, a woman is required to wait 24 hours after receiving the information to obtain an abortion.

The state’s attorneys argued that Kansas can require disclosures by physicians to protect patients and, in federal court, even likened the law to requiring health warnings on tobacco products.

“There are a lot of times the government compels people to say things, especially when they’re selling a product or rendering a service,” Stephen McAllister, the state’s solicitor general, said in federal court.

The state’s attorneys argued that whatever Kansas requires providers to put on their websites doesn’t preclude the providers from adding their own material – including disclaimers that contradict the state’s materials.

But Diana Salgado, an attorney with the New York-based Planned Parenthood Federation of America, said that under the First Amendment to the U.S. Constitution, the government can’t compel someone to endorse its views publicly. She said requiring providers to endorse the state’s materials in any way – when they dispute some of the content – is “egregious.”

She also argued in federal court that a provider’s website is a tool for communicating to thousands of people, so it matters exactly where the link and endorsement are placed.

Of the state’s four providers, the newly opened South Wind Women’s Center in Wichita links to the health department’s site on its home page, but without a statement vouching for the accuracy of the information. With the other three, a visitor must go through at least one more additional page to get to the link.

“I think it’s the difference between putting it on the front page of the newspaper and burying it,” Salgado said.