Case: Hodes & Nauser v. Kobach

This case is a challenge to the Kansas Woman's Right to Know Act. The Act, originally passed in 1997, required abortion providers to give patients medically inaccurate information, imposed numerous mandatory delays, and added irrelevant and sometimes inaccurate statements to the mandatory disclosures.

In 2019, the Kansas Supreme Court ruled that the right to an abortion is protected under the state constitution. Hodes & Nauser, MDs, P.A. v. Schmidt, 309 Kan. 610, 660 (2019). In 2022, Kansas' rejected a ballot initiative that would have eliminated this constitutional protection. 

In 2023, the Kansas Legislature amended the Woman's Right to Know Act, adding requirements for physicians to inform patients that "it may be possible to reverse the intended effects of a medication abortion that uses mifepristone." (The most common medication abortion regime in the U.S. involves taking mifepristone and, 24-48 hours later, misoprostol). The new restrictions were scheduled to take effect in Kansas on July 1, 2023. 

On June 6, 2023, two abortion clinics and two obstetrician-gynecologists filed this lawsuit challenging the Act in the District Court of Johnson County, Kansas. Plaintiffs sued the Attorney General of Kansas, the District Attorneys for Johnson County and Sedgwick County, where the clinics were located, and the Executive Director and the President of the Kansas Board of Healing Arts. Represented by the Center for Reproductive Rights, Planned Parenthood Federation of America, and private counsel, plaintiffs sought injunctive and declaratory relief. Plaintiffs brought suit under the Kansas Constitution for alleged violations of their patients' fundamental right to abortion, as well as under the Kansas Bill of Rights for alleged free speech and equal protection violations and sex discrimination. In addition, plaintiffs alleged the Act was unconstitutionally vague under the Kansas Bill of Rights.

Between June and July, 2023, the District Attorney for Wyandotte County and the Secretary of the Kansas Department of Health and the Environment were added as defendants. 

On August 8, 2023, Judge K. Christopher Jayaram heard oral arguments on the case. On October 30, 2023, Judge Jayaram granted plaintiffs' request for a temporary injunction, prohibiting the state from enforcing the mandatory disclosure requirements, the mandatory 24-hour waiting period, and the restrictions added in the 2023 amendment, including the mifepristone reversal disclosure requirements.

On April 29, 2024, the Kansas Legislature passed HB 2749, a new law that required providers to report to the state patients’ reasons for seeking an abortion and to collect patients’ demographic information. In response, on May 20 plaintiffs filed a motion seeking leave to file a supplemental petition that supplemented the second amended petition, as to add a challenge to HB 2749 to the case. Plaintiffs also filed a joint stipulation of dismissal of one of the obstetrician gynecologist plaintiffs on June 17. 

On July 1, the court heard oral argument on plaintiffs’ motion to file a supplemental petition and, on July 22, the court granted plaintiffs’ motion for leave to file a supplement to the second amended petition. 

On July 22, defendants filed a motion to dismiss the Executive Director and President of the Kansas Board of Healing Arts as defendants. The same day, defendants filed a motion to dismiss plaintiffs’ supplemental claims. The court heard oral arguments on the motion to dismiss the supplemental claims on September 3 and on the motion to dismiss the two defendants on September 23. On the latter date, the court denied both motions in a bench ruling, although it suggested the parties discuss substituting the Kansas Board of Healing Arts for the defendant Executive Director and President of the Board. The court issued a journal entry on the motion to dismiss the supplemental claims on November 20, holding that plaintiffs had adequately alleged legal standing on ripe claims,  that plaintiffs’ allegations were sufficient to state a claim, and that defendants’ arguments regarding the applicable standards and burden of proof were premature.  

As of December 23, 2024, the parties were engaging in discovery and a trial is set to begin in June 2025. The case is ongoing.