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State Judge Issues Restraining Order Against Kansas Abortion Clinic Regulations

by | Nov 17, 2011

By Kathy Ostrowski, Kansans for Life Legislative Director

Judge Franklin R. Theis

Last Thursday, attorneys for the father/daughter abortion team at the Overland Park, Kansas, Center for Women’s Health quietly obtained a restraining order from Judge Franklin R. Theis that blocks new Kansas abortion facility rules from going into effect.

So far, no hearing date is posted on the court website. The filing in Shawnee County (Topeka) District Court also asked for a preliminary and permanent injunction against the new health department (KDHE) rules and a bench ruling striking them down.

Center for Women’s Health abortionists, Herb Hodes and Traci Nauser, had obtained a July 1 injunction in federal court against the provisional KDHE abortion facility rules that were designed to expire November 14.  As is the usual process in Kansas, new laws go into effect with temporary agency rules, allowing a public input period before the permanent rules are enacted.

When it issued the permanent rules, published October 27, KDHE accommodated some of the abortionists’ complaints. 

Among their legal claims, the abortionists assert that the KDHE rules:

* “are oppressive, unreasonable and arbitrary government interference that would significantly impair, if not altogether eliminate …their existing medical practice”;

* violate abortionists’ rights, and those of their patients under the Kansas Bill of Rights;

* perpetuate “the patronizing and paternalistic stereotype that women are in need of special ‘protection’ not needed by men”;

* allow KDHE access to patients’ complete records “without adequate justification.”

It’s noteworthy that the patient privacy complaint, as well as claims of vagueness and unjustified state regulation, were raised by South Carolina abortionists during the extensive litigation over their state abortion facility rules, by the same attorney involved in this suit, Bonnie Scott Jones. 

South Carolina abortionists lost all their claims in the 4th Circuit appellate court, and were refused review by the U.S. Supreme Court in 2001.

Hodes and Nauser also complain that Kansas will require:

* patients at all times be monitored by licensed, CPR-trained personnel;

* drugs and medications only be administered by medically licensed personnel;

*that physicians must administer abortion pills (no chemical abortions via “webcam”);

* medical emergencies be limited to protecting the life, not ‘health’ of the mother.

It’s very interesting that the abortion business’ legal team has changed venues, having filed this new case in a state court. If they lose in the first round, presumably they can get their appeal up to the state Supreme Court where 5 of the 7 justices were appointed by staunchly pro-abortion former governors Kathleen Sebelius and Mark Parkinson.

Were they still pursuing their case in federal court, any Hodes-Nauser appeal would have been taken up by the more moderate 10th Circuit Court of Appeals.

Judge Theis has been on the bench 35 years and is well respected. His father, Frank Gordon Theis, was a U.S. judge for the district of Kansas for 31 years until his death in 1998.