Case: Hodes & Nauser, MDs, P.A. v. Robert Moser, M.D

This is a state court case challenging abortion restrictions in Kansas. Plaintiffs originally challenged the restrictions in federal court (more details here), but voluntarily dismissed that suit to pursue the matter in this state court case instead.

Plaintiffs—a team of physicians and the private OB-GYN practice they own and operate—challenged a regulatory scheme (the “Challenged Laws”) comprising the Kansas House Substitute for Senate Bill No. 36 (2011) (the “Act”), codified as K.S.A. § 65-4a01-4a12 (2011), and permanent regulations promulgated by the Kansas Department of Health and Environment (KDHE), K.A.R. §§ 28-34-126-44 (2011) (the “Permanent Regulations”). The Act would make it unlawful to operate an abortion facility without a valid license, and conviction for its violation could lead to suspension, limitation, or revocation of medical licenses by the Kansas Board of Healing Arts. The Act also required abortion-inducing drugs to be administered in the presence of the prescribing physician—a process that could take hours or days. Finally, it allowed ambulatory surgical centers and hospitals that provide abortions to apply to KDHE for waivers, but not medical offices such as plaintiff’s. The Permanent Regulations imposed additional requirements, including but not limited to: 1) replacing medical assistants with physician assistants or nurses, 2) keeping first-trimester abortion patients in recovery for a minimum of 30 minutes, 3) providing KDHE with broad access to patient-identifying information in medical records, and 4) registering with the Board of Pharmacy despite that the Board lacked a mechanism to register physicians’ offices.

On November 9, 2011, plaintiffs filed this lawsuit, on behalf of themselves and their patients seeking abortions, in the District Court of Shawnee County, Kansas, Division 7, seeking declaratory and injunctive relief against the Challenged Laws. As co-counsel, the Center for Reproductive Rights sued the KDHE Secretary, the District Attorney for Johnson County, and the Attorney General of the State of Kansas in their official capacities. Plaintiffs brought suit under the Kansas Constitution and Bill of Rights for alleged violations of their process and equal protection rights and of their patients’ rights of privacy and due process, as well as under the Kansas Judicial Review Act for violations of plaintiffs’ and their patients’ statutory rights to be free from arbitrary, capricious, and unreasonable government regulation.

In the same suit, plaintiffs included an application for a restraining order and temporary injunction. One day later, on November 10, 2011, the court granted a temporary restraining order (TRO) that enjoined defendants from enforcing the Permanent Regulations. The court reasoned that the threatened harm to plaintiffs and their patients outweighed potential harm to defendants because the restraining order would only maintain the status quo rather than impose affirmative obligations. While the order also set a hearing on plaintiffs’ application for a temporary injunction, the hearing was later canceled when the parties agreed to extend the TRO until the court’s issuance of a final judgment. 

During its 2015 session, the Kansas Legislature amended the 2011 Act’s medication in-person statutory provision, and, on December 8, 2015, plaintiffs filed their second amended petition alleging that the amendment violated their patients’ constitutional rights. In 2019, Defendants moved to clarify or dissolve the temporary injunction entered in 2011 and filed an appeal to challenge plaintiffs' standing. On April 12, 2019, the District Court filed an order addressing defendant's motion to dissolve the temporary injunction that did not deny defendants' motion. 2019 WL 12104324. After briefing and oral argument, the Kansas Court of Appeals dismissed the State’s appeal on February 12, 2021 because it lacked jurisdiction over the District Court's order, which did not technically continue the injunction but merely "clarified" it. 480 P.3d 211.

On April 23, 2021, both parties moved for summary judgment in the District Court. Defendants moved for a stay of proceedings until the August 2, 2022 election on an Amendment to the Kansas Constitution which would give voters the opportunity to add an amendment clarifying there is no constitutional right to an abortion (ultimately rejected by 59% of voters). However, the District Court denied that motion on July 7, 2021 as the case had been pending for eleven years already.

On December 3, 2021, the District Court of Shawnee County, Division 8, issued an opinion granting plaintiffs’ motion for summary judgment, request for a declaratory judgment that the Challenged Laws are unconstitutional and unenforceable, and request for a permanent injunction restraining defendants from enforcing the Challenged Laws. In its analysis, the court looked to the Kansas Supreme Court’s 2019 decision in Hodes & Nauser v. Schmidt, 309 Kan. 610, where the same plaintiffs challenged laws that prohibited a common abortion procedure except when “necessary to preserve the life of the pregnant woman.” Applying that precedent, the District Court first found that the Challenged Laws infringe on a woman’s right to access legal abortion services because they make it more difficult—if not impossible—to continue offering abortion care. Applying a strict scrutiny standard, the court found that the government failed to meet its burden of showing that the Challenged Laws not only corresponded to a compelling interest (ensuring patient safety), but also furthered that interest. According to the court, defendants failed to demonstrate why clinics performing abortions warranted targeted restrictions while other clinics that performed comparable or riskier procedures, such as childbirths, did not. Defendants also provided no evidence that, during the 10-year pendency of the action, a person seeking abortion care services suffered an impact to their health or safety.

Defendants filed a notice of appeal on February 18, 2022. As of October 2022, this case is ongoing.