U.S. District Judge Ortrie Smith on Monday issued a temporary restraining order blocking implementation of a new state law (SB 370) that will designate facilities performing second- or third-trimester abortions or more than five first-trimester abortions each month as "ambulatory surgical centers," the Kansas City Star reports (Morris, Kansas City Star, 8/27).

Clinics designated as ambulatory surgical centers are subject to increased regulation from the state Department of Health and Senior Services. The law, which was scheduled to take effect Aug. 28, will require that hallways be at least six feet wide and doors at least 44 inches wide. The clinics must also have separate male and female changing rooms for staff and a recovery room with space for a minimum of four beds with three feet of clearance around each bed. The health department said the law requires that three clinics in the state be licensed. Planned Parenthood of Kansas and Mid-Missouri last week filed a lawsuit that asks a federal court to block enforcement of the law.

The suit alleges that the new regulations are unnecessary and are not meant to improve safety, but rather to interfere with a woman's constitutional right to abortion. PPKM in the suit also is asking that its Columbia and Kansas City clinics be exempt from the law because they were open before the law was passed. The Kansas City clinic only provides drugs for medical abortions, while the Columbia clinic also provides first-trimester surgical abortions. PPKM CEO Peter Brownlie has said the high costs of upgrading the clinics to comply with the law would force them to stop providing abortion services (Kaiser Daily Women's Health Policy Report, 8/21).

Ruling
In his order, Smith wrote that the law appears to place an "undue burden" on PPKM's Kansas City clinic. "Of all the establishments that dispense medication (e.g. doctors' offices, pharmacies), why is it only those that dispense medication for the purpose of inducing an abortion that must be prepared to perform surgery?" Smith asked. He also wrote that requiring the Columbia clinic to comply with ambulatory surgical center regulations seems "reasonable on its surface," but added that there is an "issue" regarding when the clinic has to comply with the law (Kansas City Star, 8/27).

The "state has a legitimate interest in regulating facilities that perform surgery, even if the facility in question performs surgical abortions," Smith wrote, adding, "The court also believes the state may differentiate between facilities that do not primarily perform surgery based on the types of surgery they provide."

Comments
Brownlie said he is "very pleased" with the ruling. "The state has contended that the law is meant to protect the safety of women," he said, adding, "It's pretty clear that the judge is at best dubious of that plan." Jane Drummond, director of the health department, said, "We are concerned that blocking this law will endanger the health and safety of women," but the health department is "encouraged that the judge has set the preliminary injunction hearing so quickly so that we have a full opportunity to present our evidence" (Twiddy, AP/ABC News, 8/27).

Kevin Theriot, a lawyer representing the health department, said, "We're disappointed, but we're confident that once all the facts are in, the judge will see that the law can be enforced in a constitutional manner." A hearing will be held Sept. 10 to determine whether to make the injunction permanent, and attorneys representing both sides have until Sept. 7 to file further briefs, the Star reports (Kansas City Star, 8/27).

Reprinted with kind permission from kaisernetwork. You can view the entire Kaiser Daily Health Policy Report, search the archives, or sign up for email delivery at kaisernetwork/dailyreports/healthpolicy. The Kaiser Daily Health Policy Report is published for kaisernetwork, a free service of The Henry J. Kaiser Family Foundation© 2005 Advisory Board Company and Kaiser Family Foundation. All rights reserved.