Kansas judge open to order that would allow telemedicine abortions to continue

Controversial pill. Dr. David Grimes of the University of California at San Francisco holds a container of the abortion pill RU-486. (AP Photo/Susan Ragan)
Controversial pill. Dr. David Grimes of the University of California at San Francisco holds a container of the abortion pill RU-486. (AP Photo/Susan Ragan) ASSOCIATED PRESS

A Kansas judge has asked attorneys representing a Wichita women’s clinic to draft an order that would effectively allow telemedicine abortions to continue into 2019.

Abortion rights supporters and state attorneys battled in court on Friday over whether a state ban on telemedicine abortions should go into effect on Jan. 1. Kansas lawmakers approved the ban earlier this year.

Shawnee County District Court Judge Franklin Theis didn’t rule Friday. But his invitation to attorneys representing Wichita clinic Trust Women to draft an order signaled that he is leaning toward allowing telemedicine abortions to continue.

In a telemedicine abortion, a doctor confers with a woman via videoconference before she takes a pill to end her pregnancy. If the law is allowed to go into effect, abortion rights supporters argued, doctors would be required to be physically present for the consultation.

The Center for Reproductive Rights sued on behalf of Trust Women in November to block the law. Trust Women has used audio-video telemedicine technology to provide abortion services to women in remote areas of Kansas since October.

Supporters of abortion rights say the ban on telemedicine abortion is meant to restrict access to abortion, and that taking a pill to induce an abortion is a safe procedure. In a medication abortion, women take one pill at a medical facility and the other at home.

“Telemedicine would allow the abortion clinics in Kansas – of which there are only four – to provide the women in rural locations access to medication abortion without them having to travel significant distances,” said Leah Wiederhorn, an attorney representing the Center for Reproductive Rights.

Abortion opponents have raised questions about the procedure’s safety. And they argue that there is no right to an abortion in the Kansas Constitution, though the U.S. Supreme Court has recognized such a right in the federal constitution.

Kansans for Life says telemedicine abortions can be dangerous for pregnant women. Jeanne Gawdun, a lobbyist for the group, said a young woman who may be pregnant for the first time in a rural area could pursue a telemedicine abortion in the belief that no one would find out.

“She doesn’t have an actual, hands-on physician being able to examine her” and ask about whether she’s feeling distressed or if she was coerced, Gawdun said.

“The concern is, though, if something happens – heavy bleeding, whatever. Well, if you’ve never been pregnant, how do you know how heavy is heavy? What do you do, where do you go?” Gawdun said, adding they may go to a doctor who doesn’t have the full picture of their health.

“Where’s that important physician-patient relationship? Where is it? It’s not there, and it’s dangerous for women,” Gawdun said.

A 2017 study published in the journal Obstetrics and Gynecology found that problems are rare in telemedicine abortions and that they were effectively as safe as in-person abortions.

In court on Friday, Theis didn’t appear ready to say he would outright block the new state law.

A 2011 Kansas law prohibited telemedicine abortion, but it has never been enforced amid litigation to stop it. Lawmakers then passed a new version of the law in 2015 that also included a telemedicine abortion ban. Whether or not that law can be enforced was disputed on Friday.

Theis contended that the 2018 law has no meaning without the previous ban – suggesting that if the previous ban on telemedicine abortion isn’t in effect, then the 2018 law also can’t prohibit the practice.

At one point he called the 2018 law an “air ball.”

Theis left open the possibility that the previous law is actually enforceable, though he doubts it. Theis said he hasn’t determined whether the first ban continues to be blocked, but “I think it is.”

His comments suggest the possibility of future litigation to determine whether the previous ban is enforceable. This week Kansans for Life filed a complaint with the state Board of Healing Arts, challenging Trust Women’s ability to offer telemedicine abortions.

State attorneys on Friday argued the 2015 ban can be enforced.

“There is nothing that says the Sedgwick County district attorney could not enforce right now,” said Bryan Clark, an assistant solicitor general. Sedgwick County is where the Trust Women clinic operates.

Attorneys for Trust Women argued that the 2015 law is, in fact, currently blocked from being enforced. And they argued that the U.S. Supreme Court has found that abortion restrictions without a health benefit to women are unconstitutional. They also noted that the state didn’t submit evidence that a telemedicine ban would harm women’s health.

They said if a new telemedicine abortion ban is allowed to take effect, women wanting an abortion will face additional challenges.

“It is a way for women to access this type of care at a time when there are a lot of hostile laws that are meant to shut down clinics across the country,” Wiederhorn said after the hearing.

Even with the challenge to the ban playing out in district court, the Kansas Supreme Court is expected to release a major decision on abortion rights at some point. The Supreme Court’s opinion may say whether the state constitution includes the right to an abortion.

If the court finds that the state constitution protects the right to an abortion, anti-abortion advocates have vowed to push an amendment that would say explicitly that the constitution doesn’t protect the right to an abortion.

The language of the Kansas Constitution is important because if the right to an abortion is ever overturned at the federal level, it would be up to the states to decide whether to allow abortion.

Contributing: Dion Lefler of The Eagle

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Jonathan Shorman covers Kansas politics and the Legislature for The Wichita Eagle and The Kansas City Star. He’s been covering politics for six years, first in Missouri and now in Kansas. He holds a journalism degree from the University of Kansas.