Trust Women Foundation Inc. v. Schmidt

(Revised: 8.19.20) The Center for Reproductive Rights filed a lawsuit challenging section 6 of the Kansas Telemedicine Act (House Bill 2028) which seeks to ban abortions administered through telemedicine, including medication abortion. The bill, which was signed into law on May 12, 2018, was scheduled to take effect on January 1, 2019.

The challenge was brought on behalf of Trust Women Wichita, a licensed ambulatory surgical center that has been providing safe, high-quality reproductive health care in Kansas since 2013. Telemedicine has allowed facilities like Trust Women to expand access to services. Before introducing telemedicine at their Wichita clinic, Trust Women was only able to provide abortion care two days a week: they are now able to offer medication abortion services on additional weekdays and on Saturdays.

If the Kansas Telemedicine Abortion Ban goes into effect, doctors would be required to be physically present when a woman takes medication to end her pregnancy, forcing many women to travel long distances for a simple medication abortion. Most women in Kansas don’t live in a county with an abortion clinic—in 2014, 97% of Kansas counties were without a single clinic that provided abortions. Medication abortion has been available in the U.S. since 2000 and is extremely safe—the serious complication rate is less than one-half of one percent, whether provided in-person or by telemedicine.

While encouraging the use of telemedicine generally, the ban singles out abortion care from all other medical care. Kansas already utilizes telemedicine for medical services such as diagnosing and treating stroke victims, autism diagnosis, cardiology, oncology/hematology, pain management, pediatrics, psychiatry, and psychology. Telemedicine allows women to be evaluated and treated sooner and expands access to women in underserved areas.

In its complaint, the Center for Reproductive Rights argues that the ban unjustly singles out abortion care and creates an undue burden for women by restricting access without any countervailing health benefits. The Center asks the court to block the ban and safeguard access to safe and legal abortion for women in Kansas. A similar ban in Iowa was unanimously struck down in 2015 by the Iowa Supreme Court. The Court found the ban imposed an undue burden on a woman’s right to abortion.

Kansas women already face a number of abortion restrictions—they are required to receive state-mandated information and then wait at least 24-hours before obtaining an abortion. Women on Medicaid and state employees cannot use their health care coverage to obtain an abortion unless the pregnancy is life-threatening, and state agencies and employees are prohibited from providing abortion services. Private insurance is also banned from covering abortion in Kansas. 

HB 2028 also includes a non-severability clause that applies to the abortion provision only, meaning that if the abortion provision is determined to be unconstitutional or invalid, the entire telemedicine act falls.

Plaintiff(s):   Trust Women Foundation Inc.  d/b/a  South Wind Women’s Center d/b/a Trust Women Wichita

Defendant: Derek Schmidt, in his official capacity as Attorney General  of the State of Kansas

Center Attorney(s):  Marc Hearron, Jessica Sklarsky

Co-Counsel/Cooperating Attorneys: Robert Eye in Lawrence, Kansas 

Summary:

We filed our complaint in state court on November 8, 2018.  After a hearing on our request for a temporary injunction, the district court issued a decision concluding that the State may not enforce a ban on telemedicine abortions due to an existing injunction in our ongoing challenge to statutory provisions of Kansas’ abortion regulatory scheme and dismissed the case without prejudice on December 31, 2018.  On January 30, 2019, the State filed an appeal of the trial court’s dismissal. On February 20, the State moved to stay the appeal.