Judge considering challenge to abortion law

6/28/2013

TOPEKA (AP) — 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.

TOPEKA (AP) — 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 Dr. Herbert Hodes and his daughter, Dr. 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 "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, Mo., 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.

U.S. District Judge Kathryn Vratil expressed skepticism Wednesday that Planned Parenthood's clinic would suffer irreparable harm if she didn't immediately block the provisions singled out by the organization. She didn't issue a decision, although one is expected soon.

The state already has spent nearly $769,000 on private attorneys in defending anti-abortion laws enacted since Republican Gov. Sam Brownback, a strong abortion opponent, took office in January 2011.

Attorney General Derek Schmidt, also a Republican, has predicted that defending this year's law will cost the state $500,000 over the next two years. He is a defendant in Hodes' and Nauser's lawsuit over this year's law, along with Brownback's secretaries of revenue and health and environment.

Hodes and Nauser filed a lawsuit in 2011 against health and safety regulations specifically for abortion clinics. That case still is pending in Shawnee County, preventing the rules from being enforced.

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Online:

Text of the new Kansas law: http://bit.ly/13mjcIA

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Follow John Hanna on Twitter at www.twitter.com/apjdhanna

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