Trust Women Found. Inc. v. Bennett
| Decision Date | 20 May 2022 |
| Docket Number | 121,693 |
| Citation | 509 P.3d 599 (Table) |
| Parties | TRUST WOMEN FOUNDATION INC., d/b/a South Wind Women's Center, d/b/a Trust Women Wichita, Appellant, v. Marc BENNETT, District Attorney for Sedgwick County, Kathleen Selzler Lippert, Executive Director of the Kansas Board of Healing Arts, Robin D. Durrett, President of the Kansas Board of Healing Arts, and Derek Schmidt, Attorney General of Kansas, Appellees. |
| Court | Kansas Court of Appeals |
Anne M. Kindling, of Joseph, Hollander & Craft LLC, of Topeka, Robert V. Eye, of Robert V. Eye Law Office, of Lawrence, Gail M. Deady, pro hac vice, of Center for Reproductive Rights, of New York, New York, Jessica Sklarsky, pro hac vice, of the same firm, Kirby Tyrrell, pro hac vice, of the same firm, and Marc A. Hearron, pro hac vice, of the same firm, of Washington, D.C., for appellant.
Courtney E. Cyzman, assistant general counsel, of Kansas State Board of Healing Arts, and Tucker L. Poling, general counsel, of the same agency, for appellees Kathleen Selzler Lippert and Robin D. Durrett.
Brant M. Laue, deputy solicitor general, Jeffrey A. Chanay, chief deputy attorney general, Shon D. Qualseth, senior trial counsel, and Derek Schmidt, attorney general, for appellees Marc Bennett and Derek Schmidt.
Before Arnold-Burger, C.J., Schroeder, J., and Richard B. Walker, S.J.
This lawsuit, brought against Attorney General Derek Schmidt, Sedgwick County District Attorney Marc Bennett, and the President and the Director of the Kansas Board of Healing Arts by a Kansas abortion provider and its patients, challenges the constitutionality of K.S.A. 65-4a10. The statute requires any abortion-inducing drug "be given to the patient by or in the same room and in the physical presence of the physician who prescribed, dispensed or otherwise provided the drug or prescription to the patient." K.S.A. 65-4a10(b)(1)(B). This results in the inability of a legal abortion provider, Trust Women Foundation Inc. (Trust Women), to provide abortion services via telemedicine. As a result, Trust Women requested that the court issue a temporary injunction against enforcement of the statute. It claimed that there was a reasonable probability it would suffer irreparable injury if the statute were to be enforced pending a determination of its constitutionality. The district court denied injunctive relief. It also dismissed Trust Women's action against the Kansas Board of Healing Arts, finding Trust Women lacked standing to sue the Board. Trust Women appeals both rulings.
Because we find that the district court abused its discretion in denying injunctive relief to Trust Women, we reverse and remand this case to the district court to apply the correct legal standard and correct its error of fact. We also find that the district court erred in dismissing the case against the Board of Healing Arts for lack of standing. We reverse that finding and reinstate the action against the Board.
We pause to note that the present action regarding the constitutionality of the statute remains pending in the Shawnee County District Court. Here, the case before us relates only to the issuance of a temporary injunction. But as part of the "procedural backwater" described by the district court in this case, another action challenging the same statute was decided by a different judge in Shawnee County on January 20, 2022. That case, in which a temporary injunction had been in place by agreement of the parties for 10 years, resulted in a finding that K.S.A. 65-4a10 was unconstitutional to the extent it banned telemedicine medication abortions. A notice of appeal has been filed in that case.
This case involves the cessation of a pregnancy in the first 10 weeks through a process known as a medication abortion. Medication abortions are administered by oral consumption of two different medications, one in a medical office and one at home—where the abortion is completed. The patient must schedule a follow-up appointment in the clinic 14-21 days after the medication abortion is complete. At the follow-up appointment the patient is given a pregnancy test and a physician has an opportunity to evaluate the patient.
Since 2011, state law has provided that "[w]hen RU-486 (mifepristone) or any drug is used for the purpose of inducing an abortion, the drug must be administered by or in the same room and in the physical presence of the physician who prescribed, dispensed or otherwise provided the drug to the patient." K.S.A. 2011 Supp. 65-4a10(a). Violation of the law constitutes unprofessional conduct under the Kansas Healing Arts Act. K.S.A. 65-4a10(d). This law prevents medication abortions from being accomplished through telemedicine—a common method of medical patient interaction for a virtually limitless list of medical appointments and procedures.
A group of gynecologists challenged the law as unconstitutional a few months after its passage. Hodes v. Moser , No. 2011-CV-1298 (Hodes 2011 ). The district court entered a temporary restraining order preventing enforcement of the law until a hearing could be held. Soon thereafter, the parties—the gynecologists, the Secretary of the Kansas Department of Health and Environment, the Attorney General, and the Johnson County District Attorney—entered an agreement (Agreed Order), manifested by an order of the district court, agreeing that the defendants would not seek to enforce the statute or accompanying regulations pending the district court's final judgment. Such an agreement was well within the authority of the Attorney General.
That case remains pending over 10 years later, with little effort to move it to judgment by any party until recently. In January 2022, K.S.A. 65-4a10 was declared unconstitutional by the Shawnee County District Court. The State has filed a notice of appeal. Based on the Agreed Order, abortion providers were able to provide medication abortions by telemedicine unrestricted—with no fear of enforcement—from the date of the Agreed Order to today. The evidence in the current case was that no enforcement action has been taken by the Attorney General, any district or county attorney, the Kansas Department of Health and Environment, or the Board of Healing Arts for the last 10 years against any Kansas abortion provider for providing medication abortion via telemedicine.
The Legislature adopts the Telemedicine Act, effective January 1, 2019.
With Hodes 2011 still pending in the district court, the Legislature enacted the Telemedicine Act which became effective on January 1, 2019. L. 2018, ch. 98, § 1; see K.S.A. 2020 Supp. 40-2,210 et seq. The Act addressed health insurance coverage and information privacy standards for telemedicine care. Section 6 of the Act contained the sole reference to abortion, providing: "Nothing in the Kansas telemedicine act shall be construed to authorize the delivery of any abortion procedure via telemedicine." L. 2018, ch. 98, § 6; see K.S.A. 2020 Supp. 40-2,215.
Trust Women files a lawsuit to enjoin enforcement of the Telemedicine Act as unconstitutional.
Trust Women provides reproductive healthcare, including abortion, HIV/AIDS treatment, transgender care, and family planning services. At the time of the motion hearing, it operated clinics in Wichita, Oklahoma City, and Seattle. It opened its Wichita clinic in April 2013. It has provided medication abortions at its Wichita clinic since 2013. Trust Women began providing medication abortions via telemedicine in October 2018, after the passage of the Telemedicine Act but before it went into effect.
Trust Women filed a lawsuit in November 2018 against Kansas Attorney General Derek Schmidt, No. 2018-CV-844 (Trust Women I ). It alleged that Section 6 of the Telemedicine Act was an unconstitutional infringement on abortion access. Trust Women sought a temporary injunction and a temporary restraining order preventing enforcement of Section 6 of the Act, which was scheduled to go into effect January 1, 2019.
The district court dismissed the case on December 31, 2018, ruling that nothing in the Telemedicine Act "contain[ed] an independent prohibition on the provision of abortion through the use of medications nor by telemedicine." In other words, the Act neither allowed medication abortions via telemedicine, nor prohibited them.
The district court also noted the symbiotic relationship between the Telemedicine Act and K.S.A. 65-4a10 —which does ban telemedicine medication abortions. The court found that even if the Telemedicine Act could be interpreted as a ban on telemedicine medication abortions, the Agreed Order entered in Hodes 2011 enjoined Schmidt, as Kansas Attorney General, from enforcing it. This was true even though Trust Women was not a party to Hodes 2011 because Trust Women was "entitled to enjoy that umbrella of protection and safe harbor provided by the Agreed Order ."
Explaining this broad interpretation of the Agreed Order in Hodes 2011 , the district court noted that the attorney general is the chief law enforcement officer of the state. See K.S.A. 75-702 (); K.S.A. 75-764 (); Supreme Court Rule 11.01 (2022 Kan. S. Ct. R. at 71) (same); see also State v. Finch , 128 Kan. 665, 668-69, 280 P. 910 (1929) ...
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