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06.30.11

Kansas’ War on Abortion

The state’s stringent and absurd new regulations for abortion providers have little to do with medicine or safety, but are designed to drive clinics out of business. Kansas has pioneered a dangerous new tactic in the abortion wars, says Michelle Goldberg.

Dr. Herbert Hodes, a Kansas ob-gyn, has a patient who is 18 1/2 weeks pregnant and has ruptured membranes. The pregnancy, he says, will not survive, and if the woman continues it, she will get an infection. He saw her on Thursday, but because of Kansas’s 24-hour waiting period, he wasn’t able to perform an abortion. And on Friday, absent a last-minute injunction, he will lose his abortion license. There are other doctors he can send his patient to, but they are several hundred miles away.

On Thursday, Kansas was on the verge of becoming the first state in the country without an abortion provider, thanks to stringent new regulations designed to close down its three clinics. But Thursday evening, amid a growing national outcry, the Kansas Department of Health and Environment decided to license the state’s Planned Parenthood affiliate after all. For women’s-rights activists, it was a victory, but it doesn’t change the fact that Kansas has pioneered a dangerous new tactic in the abortion wars.

For years, anti-abortion forces have used Targeted Regulation of Abortion Providers, or TRAP laws, to make it difficult for clinics to operate. Early this year, for example, Virginia passed a bill regulating abortion clinics as hospitals, which will likely shut down 17 of the state’s 21 clinics. What made the Kansas bill extraordinary was both the absurdity of its rules and the speed with which they were put into effect. The law creating new licensing standards for abortion clinics was passed in April, but Gov. Sam Brownback’s administration didn’t draft the rules until mid-June. Then, declaring them emergency regulations, the administration gave clinics less than two weeks to comply.

After the April law, Hodes, who runs a private practice with his daughter, Traci Lynn Hauser, began preparing. When they got the list of the new rules on June 13, they were ready, and on June 14 they sent in their license application. But on the June 20, they received a 36-page batch of further rules promulgated by Kansas’ Department of Health and Environment. They had until July 1 to meet them.

“They don’t know about the practice of medicine.”

The new regulations, said Hodes, included bizarre stuff. They required that there be locker rooms for patients to leave their belongings, something rare even in hospitals. The rules mandated 300 square feet—about the size of a Manhattan studio apartment—of janitorial storage space. “One of the drugs they required us to have was for seizures, Phenobarbital,” says Hodes.  ”For the last 20 years, Phenobarbital hasn’t been the standard of care for treating seizures.” Indeed, he said, if a doctor did give someone Phenobarbital for a seizure, he could be sued for malpractice. “They don’t know about the practice of medicine,” he says.

Of course, this isn’t about the practice of medicine. The new regulations say that abortions can only be performed in procedure rooms that are at least 150 square feet. But under the regulations, if Hodes has a patient who miscarries, he can perform a D&C—the exact-same procedure involved in abortion—in his current, 100-square-foot rooms, which makes it hard to argue that there’s a safety concern.

Hodes, Hauser and their attorneys have moved for a temporary restraining order, but absent that, as of July 1, they won’t be able to perform abortions anymore. Some of their patients might go to Planned Parenthood, but Planned Parenthood doesn’t handle high-risk cases—indeed, until now, it sent many of those cases to Hodes and Hauser. Hodes has hospital-admitting privileges, but the local hospital won’t let him perform abortions unless a woman’s life is at stake. So the woman with the ruptured membrane can either go out of state, or wait until her life is sufficiently in danger for her doctor to be permitted to treat her.

“That’s just today, Hodes said of that patient. “Yesterday I did a termination on a patient who had cancer. She had wanted to be pregnant. She was able to have her procedure done in the privacy of my office with her husband in the room. She didn’t have to go through picketers and metal detectors, and she was in and out of the office in less than an hour.” In the future, such patients won’t be so fortunate, though fortunate hardly seems like the right word.

If this latest attempt to shut down Kansas’ abortion providers is successful, it won’t stop there. Right now, says Ted Miller, director of communications at NARAL Pro-Choice America, there are 15 states that have both anti-abortion governors and legislatures.  “Anti-choice politicians will look at what is happening in Kansas and unfortunately will try to replicate that in their own states,” says Miller. “That’s the biggest threat to abortion care.”