Kansas Analysis Speed hinders state's new abortion rules Two abortion providers would need extensive renovations to comply

By John Hanna

Associated Press

TOPEKA, Kan. (AP) -- Gov. Sam Brownback's administration created significant legal problems for Kansas as it attempts to increase its regulation of abortion providers by giving them relatively little time to comply with new rules.

Regulations drafted by the Kansas Department of Health and Environment took effect July 1 but were blocked the same day by a federal judge, until a lawsuit involving two of the state's three providers is resolved. The lawsuit argues the state violated the providers' constitutional right to due legal process.

The department drafted the rules under a new law requiring abortion providers to obtain annual licenses to terminate pregnancies. The regulations dictate what drugs and equipment providers must stock, require them to make medical records available for inspection, set standards for room sizes and temperatures and require patients to remain in recovery rooms at least two hours after an abortion.

The new requirements for buildings have drawn scrutiny because two providers, the Aid for Women clinic in Kansas City, Kan., and the Center for Women's Health, in the Kansas City suburb of Overland Park, have acknowledged needing extensive renovations to comply. To get a license, they were supposed to have shown they'd comply by July 1, based on regulations dated June 17.

But the health department probably won't be allowed to enforce its requirements for providers' buildings, at least this year. With the lawsuit, there's a good chance the department will be required to either back away or give the providers far more time than it had planned to make changes.

"There is absolutely no way that they could have complied with those requirements," Teresa Woody, an attorney for the two physicians at the Center for Women's Health, argued in federal court. "There is an undue burden both on the doctors and the patients."

Brownback signed the licensing law May 16. The department had one version of the accompanying regulations ready by June 8 but then revised them and issued a new set nine days later.

Health department officials have said they were required to act quickly because the licensing law took effect July 1 and didn't give them discretion to delay regulations, waive rules or issue provisional licenses.

The department didn't hold a public hearing; a state rules-reviewing board allowed the quick process but its approval permits the regulations to be in effect only four months. To keep the rules in place after October, the health department has drafted another, identical set, scheduling a public hearing in September and promising to consider changes.

Aid for Women and the Center for Women's Health are among dozens of clinics and doctor's offices performing surgical procedures that fall under less strict rules set by the State Board of Healing Arts, which licenses and regulates individual physicians. The third abortion provider, a Planned Parenthood of Kansas and Mid-Missouri clinic in Overland Park, already is licensed as a surgical center by the health department.

Planned Parenthood's clinic obtained an abortion license, but the others didn't.

The new regulations for abortion providers say their procedure rooms must have at least 150 square feet of space, excluding fixed cabinets, each with its own janitor's closet of 50 square feet. Recovery rooms must have at least 80 square feet of space for each patient.

Supporters believe the regulations will protect patients. The health department contends it's making standards consistent for all abortion providers and setting a "gold standard" for care.

But abortion rights advocates don't trust the licensing or rule-making process because Brownback is an anti-abortion Republican, and they believe the real goal is to keep clinics and doctor's offices from performing abortions. The federal judge who blocked enforcement of the rules questioned whether the state yet has evidence that the regulations are "rationally related" to protecting patients.

Abortion rights advocates have cited the requirement for 50-square-foot janitor's closet as an example of a rule with no bearing on patients' health and safety. Richard Levy, a University of Kansas law professor, said at first glance, such a regulation might seem unrelated.

"But suppose there was a document in the record that showed, well, if the closet is too small, it tends not to be clean and poses a risk of infection," he said. "If there's evidence showing that sort of health risk, regulating closet size looks less absurd."

Indeed, Kathy Ostrowski, legislative director for the anti-abortion group Kansans for Life, said requiring separate janitor's closets for each procedure room prevents mixing and contamination of supplies.

Abortion opponents often cite South Carolina's set of regulations for providers as a good model that's already survived court scrutiny. Those rules don't set specific square-footage requirements but do say procedure rooms must be large enough to "allow unfettered movement for all persons involved in the procedure."

As for the Kansas standards, Ostrowski said, "They're totally legitimate."

Meanwhile, the department's insistence that providers comply quickly with the new requirements remains a compelling legal issue, whether the date is July 1 or Nov. 1. Attorneys for the providers said they'll fight the next set of rules if it's not significantly different.

Levy said it's not necessarily improper to require a business to retrofit an existing building to new standards if the industry is highly regulated and changes in standards occur regularly.

But, he said, a government agency faces legal challenges if it doesn't give a business reasonable time to make changes after regulations take effect -- as opposed to during the drafting process, while the rules are still subject to change.

"When you get ahead of procedures, you make more trouble for yourselves," he said, speaking about government agencies generally.

And in South Carolina's regulations, a note followed a rule that required an existing abortion clinic to meet the same building code requirements as a new one. The note said existing clinics "may be licensed in their current buildings," as long as they have a plan to come into compliance -- within two years.

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EDITOR'S NOTE: John Hanna has covered Kansas government and politics since 1987 and has written extensively about the state's abortion debates.

Published: Fri, Jul 15, 2011