June 29, 2011
Kansas Abortion Law (SB 36) Challenged in Federal Court
[Update: Judge Carlos Murguia issued a preliminary injunction from the bench on July 1, 2011].
The controversial law passed by the Kansas legislature, SB36 (or more precisely, the House Substitute for SB 36) and signed by Governor Sam Brownback, imposes stringent new regulations on health care facilities that perform abortions.
Some would categorize it as a TRAP law - - - a Targeted Regulation of Abortion Providers law - - - but almost everyone agrees that the law is part of a sustained effort in Kansas to eliminate abortion services in the state. The law mandates specific licensing requirements, including miles from hospital, gender of physician or observer, and medication to be taken in the presence of physician. The law provided for Temporary Regulations to be issued.
A complaint has been filed on behalf of two physicians represented by the Center for Reproductive Rights in federal court. The complaint alleges the law and the regulations are unconstitutional as
- violating the patients' right of privacy because the law has the purpose and the effect of imposing an undue burden on Plaintiffs’ patients who seek abortions presently or in the future, in violation of the Fourteenth Amendment to the United States Constitution;
- violating Plaintiffs’ right to procedural due process under the Fourteenth Amendment to the United States Constitution because they deprive Plaintiffs of protected property and liberty interests without providing Plaintiffs with any form of pre-deprivation hearing, including any opportunity to comment on theregulations or request waivers;
- violating Plaintiffs’ right to due process of law under the Fourteenth Amendment to the United States Constitution by: depriving them of property (including lost income and future patients) and liberty (including their ability to practice their profession) without serving any compelling, substantial, or legitimate state interest;
- violating Plaintiffs’ right to due process of law under the Fourteenth Amendment to the United States Constitution by failing to give Plaintiffs fair notice of the requirements they must meet under the Temporary Regulations and encouraging arbitrary and discriminatory enforcement of those regulations;
- depriving Plaintiffs of equal protection of the laws, as guaranteed by the Fourteenth Amendment to the United States Constitution, by subjecting them to unique burdens not imposed on medical practices that provide comparable services, with no basis for the differential treatment other than animus.
The complaint seeks a preliminary injunction; no date has been set for the hearing.
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