Hodes & Nauser v. Kobach

On June 6, 2023, the Center for Reproductive Rights filed a lawsuit in state court challenging several onerous, harmful Kansas abortion restrictions that greatly diminish access to care. Kansas’s restrictions, which were scheduled to go into effect on July 1, force providers to convey inaccurate medical information and impose arbitrary bureaucratic requirements that delay time-sensitive care.

On October 30, a Kansas state court issued a temporary injunction blocking several of these laws from going into effect, including restrictions that compel providers to convey false government-scripted information to patients and impose unjustified requirements that threaten patients’ health. 

State lawmakers passed the Women’s Right to Know Act (or “Biased Counseling Scheme”) just eight months after Kansan voters overwhelmingly rejected efforts to eliminate the fundamental right to abortion from the state constitution.

The restrictions being challenged in the lawsuit include:

• A requirement that all patients are given inaccurate state-mandated information before they can receive care, including medically unfounded statements that abortion poses a “risk of premature birth in future pregnancies” and “risk of breast cancer”.
• Arbitrary bureaucratic requirements that delay access to time-sensitive care, such as insisting that the state-mandated information given to patients conform to a specific typeface, font size, and color.
• A medically unnecessary rule forcing patients to wait 30 minutes after meeting with their provider before they may receive abortion care.
• A law requiring providers to relay to their patients at least five times that medication abortion can be “reversed”—a false, and potentially dangerous, claim unsupported by scientific evidence.

On August 8, 2023, a Kansas state trial court judge heard oral arguments in the Center’s challenge to block the restrictions, some of which have yet to take effect.

On May 20, 2024, the Center and Planned Parenthood filed a legal challenge to HB 2749—a new law that would force providers to report to the state patients’ reasons for seeking abortion—and asked the court to add the challenge to this case. HB 2749 requires providers to have patients rank their top reasons for seeking an abortion, such as financial difficulty, a threat to their health posed by pregnancy, or the pregnancy resulting from rape or incest. It also requires providers to collect patients’ demographic information, including age, race, marital status, state or country of residence, highest level of education, and whether the patient has reported domestic violence. The law passed April 29 after the Kansas Legislature overrode a veto from Governor Laura Kelly, and it is set to take effect July 1.

Case Arguments 

In the lawsuit, the Center argued that the restrictions violate the state constitution, including providers’ right to free speech and their patients’ right to abortion. 

Specifically, the Center argued that the Kansas Biased Counseling Scheme:

• Imposes unique, additional “informed consent” requirements on abortion that it does not impose on any other health care in Kansas.
• Undermines informed consent and its underlying ethical principles by forcing providers to disseminate inaccurate and/or misleading information to their patients.
• Harms the health and safety of people seeking abortion by delaying time-sensitive health care, requiring providers to force potentially traumatizing information on their patients, and mandating that providers convey medically inaccurate information that poses threats to patients’ safety.
• Stigmatizes abortion care and discriminates against pregnant people seeking abortion care by perpetuating the demeaning view that people seeking abortions are uniquely incapable of making informed health care decisions.

In their October 30 decision, the Kansas state court ruled that there is no “credible scientific/medical evidence that the ‘reversal’ therapy proposed in the Amendment actually ‘affect’ the effects of mifepristone. Indeed, the overwhelming weight of credible evidence, given this record, suggests that such a theory is misleading, untested, potentially-dangerous for women, and speculative.” They further stated that “the State’s rationale and schemes… violate the fundamental rights of ‘free speech’ held by the provider plaintiffs.”

In granting a temporary injunction, the court further declared that it was “skeptical” the Act’s requirements effectuated a genuine State interest, instead characterizing the Biased Counseling Scheme as a “thinly-veiled effort to stigmatize the procedure and instill fear in patients that are contemplating an abortion, such that they make an alternative choice, based upon disproven and unsupportable claims.”

The additional challenge filed May 20, 2024, asserts that by requiring providers to interrogate patients with invasive and unnecessary questions—including probing the “reasons” they are seeking an abortion—HB 2749 directly interferes with Kansans’ bodily autonomy and their fundamental right to make their own decisions about health care.

Plaintiff(s): Hodes & Nauser, MDs, P.A.; Traci Lynn Nauser, M.D.; Tristan Fowler, D.O 

Center Attorney(s): Jiaman Wang, Cici Coquillete, Megan Jones 

Co-Counsel/Cooperating Attorney(s): Teresa A. Woody, The Woody Law Firm PC; David J. Weiner and Paul W. Rodney, Arnold & Porter Kaye Scholer LLP; Mandi R. Hunter and Stephanie L. Hammann, Hunter Law Group; Erin Thompson, Planned Parenthood Great Plains; Diana O. Salgado and Emma Noftz Stern, Planned Parenthood Federation of America  

Defendant(s): Kris Kobach; Stephen M. Howe; Marc Bennett; Susan Gile; Ronald M. Varner, D.O.

June 06, 2023	The Center files a lawsuit in Kansas state court challenging a regulatory scheme that impose several onerous, harmful restrictions on abortion care, including a requirement that providers convey medically inaccurate information to their patients.
July 01, 2023	Abortion restrictions, including the so-called medication abortion “reversal” requirement, are scheduled to take effect in Kansas.
August 08, 2023	Kansas state trial court judge hears oral arguments in the case.
October 30, 2023	Kansas state court issues a temporary injunction blocking several of the restrictions laid out in Kansas’s regulatory scheme from taking effect.
May 20, 2024	The Center and Planned Parenthood file a legal challenge to HB 2749 and ask the court to add the challenge to this case.

• Plaintiffs’ Motion for Leave to Supplement Second Amended Petition, 05.20.24
• Petition in the District Court of Johnson County, Kansas Civil Court Department, 06.06.23

• Press release: Kansas Abortion Providers Challenge New Law Forcing Them to Give Patient Information to the State, 05.20.24
• Press release: Kansas Abortion Restrictions Challenged in Court, 06.06.23