Abortion access could change in Kansas as a series of state laws regulating the practice is challenged in state courts. 

The Kansas Supreme Court ruled in 2019 that the state Constitution protects the right to abortion. Kansas voters then upheld that right in the 2022 election. But abortion can continue to be governed. 

The state legislature can still pass laws regulating the practice, but those laws can’t infringe on someone’s constitutional right. That’s at the heart of a lawsuit being heard this week in the Johnson County District Court. 

The Center for Reproductive Rights, along with abortion providers Hodes & Nauser and Planned Parenthood Great Plains, sued the state. They argue the mix of recently passed and decades-old laws went too far and makes it harder to access care. The state disagrees. 

Those regulations include: 

• Requirements that certain documents are printed out in the right font, font size and color 
• A 24-hour waiting period before someone gets an abortion 
• A requirement to listen to a fetus’ heartbeat before an abortion 
• A patient survey that asks the main reason someone is seeking an abortion 
• Requirements that doctors tell patients medication abortions can be reversed, which is a medically dubious claim. 

What makes an abortion restriction illegal in Kansas? 

The Kansas Supreme Court’s 2019 opinion said that abortion restrictions in Kansas must pass the highest legal standard. 

That means any restriction on that right, no matter how small, is presumed to be unconstitutional. It then falls to the government to prove they have a valid reason to regulate the practice and craft a narrowly written law. 

Everything from laws that fully prevent someone from getting the procedure to laws that delay when someone can get an abortion could be found unconstitutional. 

“At issue here is the inalienable natural right of personal autonomy, which is the heart of human dignity,” the previous state Supreme Court opinion said. “It encompasses our ability to control our own bodies, to assert bodily integrity, and to exercise self-determination.”

The lawsuit argues the rules at the heart of the lawsuit keep women from accessing abortions, which means infringing on their constitutional rights, said Cici Coquillette, a staff attorney for the center. 

She said women have been denied abortions in Kansas because their printer ran low on ink and black text turned to gray, which violated the state law requiring certain document formatting. 

“It is just the barriers that it places,” Coquillette said, “Part of it, too, is just singling out abortion and trying to put the state’s thumb on the scale for other choices and trying to stigmatize a decision that is protected in Kansas law.” 

Brittany Jones, president of Kansas Family Voice, disagrees. Jones isn’t part of the litigation, but she supports the laws that were passed. She doesn’t see these laws as infringements, rather as regulations that better inform women about the procedure before them. 

One of the laws in question requires providers to ask patients what their main reason is for seeking an abortion. Other medical providers survey their patients. 

Jones said she is expecting the lower court to rule against the regulations, but she’s watching to see certain parts of the ruling. For example, the state must have a compelling interest to pass abortion regulations in Kansas. 

Jones said the state has a compelling interest to tell patients about medical procedures, but the courts have left some ambiguity. 

“When the more deliberative courts really start looking at this … we’re really hopeful,” she said. “We think that the state is building a good case to make arguments at that level that these (regulations) are not infringements.”

Are these laws medically necessary?

The trial is focused on access to abortion care and how the laws affect them, but Coquillette said whether these regulations are medically necessary is one part of that argument. 

Dr. Tara Chettiar, a Kansas-based obstetrician and gynecologist, and Alina Salganicoff, senior vice president and director of women’s health policy at the Kaiser Family Foundation, both said each law provides no medical benefit. It doesn’t make the procedures safer and it doesn’t improve patient outcomes. 

The World Health Organization and the Royal College of Obstetricians and Gynecologists in the United Kingdom agree with Chettiar and Salganicoff. Both organizations offer a list of best practices for abortion, and neither recommend waiting periods, listening to heartbeats, font recommendations or telling patients medication abortions can be reversed. 

Some recommendations just don’t make sense, Chettiar and Salganicoff said. An abortion can be just as safe whether using a green Times New Roman font or a black Calbri font on documents. 

The heartbeat of a fetus is also unnecessary information. It has nothing to do with the upcoming surgery, Chettiar said. 

“You can’t even make up why that would be good for someone,” she said. “You can’t even hallucinate that one.” 

Chettiar said her general recommendations for improving outcomes in abortion care are early access, quality insurance and feeling comfortable with the doctor.

Salganicoff said evidence-based information is one way to improve patient outcomes for abortion. Giving patients inaccurate information about the reversibility of medical abortion does the opposite. 

“It causes harm if you offer something that is actually not supported by science or by research,” she said. 

Telling patients the pills are reversible can be dangerous. 

A study published in January 2020 looked at 40 patients taking the two-dose medication abortion regimen. One group took both pills and one group took a pill and placebo. The study was stopped early because it wasn’t safe enough for the patients. Some stopped the trial because severe hemorrhaging landed them in the hospital. 

What happens next?

The court case is expected to finish on Oct. 17. The case could easily end up at the Kansas Supreme Court, where it would face a majority of liberal justices. 
The top court threw out a series of restrictions last year.