Case: Trust Women Foundation Inc. v. Bennett

This case is about telemedicine abortion in Kansas. The case follows directly from Trust Women v. Schmidt, in which plaintiff Trust Women, a reproductive health care clinic in Kansas that relies on telemedicine, won a preliminary injunction and temporary restraining order preventing the state from enforcing House Bill 2028's ban on telemedicine abortion. However, following that preliminary injunction, Kansas appealed on January 30, 2019 and asserted that Kansas Healing Arts, other Kanas abortion regulators who had not been enjoined, could still enforce the ban on telemedicine abortion. Trust Women filed this case on the same date, requesting that the court also issue a restraining order against those defendants from the Kansas Board of Healing Arts. Trust Women’s February 7, 2019 complaint in this case essentially restated their claims from Trust Women v. Schmidt (that Section 6 of the Act violates the state Constitution by intentionally and impermissibly purposefully burdening the Plaintiff’s fundamental right to terminate a pre-viable pregnancy and by denying equal protection to both abortion patients and abortion providers), and re-requested a restraining order preventing the prohibition on telemedicine abortion, but against a new set of defendants. Still represented by private counsel and the Center for Reproductive Rights, Plaintiffs filed this case in state court in the U.S. District Court for the District of Kansas, 3rd District, Section 7.

On the same day as filing their complaint, Trust Women attempted to consolidate this case with Hodes & Nauser v. Moser, which had controlled Schmidt and therefore also could have been outcome-determinative here. However, the Court denied consolidation on April 17, 2017.

In the meantime, the Kansas Board of Healing Arts motioned for dismissal and Trust Women motioned for a temporary injunction and a temporary restraining order. On July 8, 2019, Judge Teresa L. Watson dismissed the claims against the Kansas Board of Healing Arts for lack of standing — the organization did not sue on behalf of any of the physicians it had claimed were harmed, and was also not allowed to sue on behalf of third parties. The Court also denied a temporary injunction with respect to the remaining defendants, a Kansas District Attorney and the Kansas Attorney General. There, the Court held that Trust Women had failed to demonstrate that there would be irreparable injury.

On August 19, 2019, Trust Women appealed the trial court's denial of its motion for temporary injunction and dismissal of the Kansas Board of Healing Arts. Trust Women argued that they did have standing, that the injury requirement did not apply, or that injury had been shown.

On March 31, 2020, Trust Women filed an emergency motion with the Kansas Court of Appeals requesting an injunction to block the in-person requirement for medication abortion in light of the Covid-19 pandemic, despite the appeal’s pending status. On April 10, 2020, the Appeals Court denied that motion, saying that Trust Women’s physical clinics could still remain open, and that although Kansas’ relevant Covid executive orders encouraged telemedicine, it explicitly excluded telemedicine abortion from its encouragement.

Also on March 31, 2021, the State moved to stay the case pending Kansas’s August 2022’s ballot initiative that would allow the state more leeway to regulate and prohibit abortion. On April 9, 2021, the Court denied the State’s motion to stay.

On May 20, 2022, a two-judge majority of the Kansas Court of Appeals, with Chief Judge Karen Arnold-Burger writing, reversed and remanded the district court's decisions as an abuse of discretion and reinstated the action against the Kansas Board of Healing Arts. The Court held that Trust Women established a cognizable injury and a causal connection between the injury and the Board of Healing Arts, and so it had standing to sue. The case was therefore remanded back to the trial court. 509 P.3d 599.

Upon remand, on November 23, 2022, Judge Watson for the trial court reinstated Trust Women's claims against the Kansas Board of Healing Arts defendants. She also granted Trust Women's motion for a temporary injunction barring enforcement of K.S.A. 65-4a10 and correspondingly lifted the previous August 26, 2019 stay. The parties have now been ordered to have a status conference. The case is ongoing.