Federal: Hodes & Nauser, MDs, P.A. et al. v. Robert Moser, M.D et al.


Primary Content

This case challenges the constitutionality of onerous temporary regulations and a sham licensing process adopted and implemented by the Kansas Department of Health and Environment (KDHE) that will cause most of the abortion providers in the State to cease providing ongoing abortion services.

Case filed: June 28, 2011

State: Kansas

Plaintiff(s): Hodes &amp, Nauser, MDs, P.A., Herbert Hodes, M.D. and Traci Nauser, M.D.

Center Attorney(s): Bonnie Scott Jones, Kara Loewentheil

Co-Counsel/Cooperating Attorneys: Teresa Woody, The Woody Law Firm PC

Summary: Kansas Senate Bill 36 (SB 36) was signed by Governor Sam Brownback on May 16, 2011.SB 36 is a TRAP law that makes it unlawful to operate an abortion clinic in the state without possessing a valid license issued by KDHE.  CRR challenges the temporary regulations and licensing process adopted and implemented under SB 36. At every step of the process, KDHE acted in ways that made it impossible for existing medical practices to obtain a license by the effective date:  (a) KDHE drafted and finalized temporary regulations without giving regulated facilities any opportunity to comment on the regulation, (b) KDHE included medically unnecessary, burdensome and inappropriate requirements in the regulations, such as rigid specifications as to the number, type and dimensions of rooms in the facility, (c) KDHE conditioned licensure upon compliance with the temporary regulations, which were not sent to abortion providers until after the close of business on June 17, 2011, less than two weeks before the Act was to take effect on July 1, and (d) KDHE refused to consider waiver requests, provisional licensing, or any other accommodations for existing facilities.

For decades, Plaintiffs have provided safe, high quality obstetrical and gynecological services, including abortion services, in their private medical office.  That office meets the needs of their patients, the applicable standards of care, and the existing State regulations governing medical facilities that perform office-based surgeries.  Nonetheless, that office would not have been able to meet all of the requirements of the new temporary regulations or bring the facility into full compliance in such a short period of time (Plaintiffs would need to rebuild their facility from ground up to comply).  

On July 1, Plaintiffs’ motion for preliminary injunction was granted, blocking enforcement of the temporary regulations and licensing process until the case is resolved and allowing the three abortion providers in the state to remain open. A Superseding permanent regulatory scheme is scheduled to take effect November 14, 2011. We are challenging this regulatory scheme in a separate lawsuit.