Judge takes action on abortion ban about to take effect

TOPEKA, Kan. -- A Kansas judge on Thursday blocked the state's first-in-the-nation ban on an abortion procedure that opponents describe as dismembering a fetus, concluding that it would likely present too big an obstacle for women seeking to end their pregnancies.

Shawnee County District Court Judge Larry Hendricks ruled in a lawsuit filed this month by the New York-based Center for Reproductive Rights. The center, representing two Kansas abortion providers, argued that the law would force women to undergo riskier procedures or forgo abortions.

The center noted that the procedure is used in 95 percent of second-trimester abortions nationally, and said previous U.S. Supreme Court rulings don't allow a state to ban the most common method for terminating a pregnancy.

Hendricks said those arguments were likely to prevail, even though alternative abortion methods still would be legal.

"The alternatives do not appear to be medically necessary or reasonable," Hendricks said from the bench.

The judge's order will stay in effect while he considers the lawsuit further. The new law was supposed to take effect July 1.

It was model legislation from the National Right to Life Committee. Kansas was the first state to enact it. Oklahoma legislators approved a similar measure shortly after Kansas, but that statute takes effect in November.

"I think that ultimately, we're going to be successful," Jessie Basgall, attorney for Kansans for Life, said after the ruling. "This is just whether or not the law is going to stand while we actually litigate the merits of this law. I believe we're on solid ground."

The judge also declared that the Kansas Constitution independently protects abortion rights at least as much as the U.S. Constitution does. Attorneys on both sides said such a ruling, if it stands, eventually could allow state courts to strike down restrictions that the U.S. Supreme Court has upheld.

The new law would have banned doctors from using forceps, clamps, scissors or similar instruments on a live fetus to remove it from the womb in pieces. Such instruments are commonly used in dilation and evacuation procedures, but Kansas legislators said using them on a live fetus is inhumane.

The Center for Reproductive Rights is representing Dr. Herbert Hodes and Dr. Traci Nauser, a father and daughter who perform abortions at a health center in the Kansas City suburb of Overland Park.

Dilation and evacuation procedures accounted for about 9 percent of all abortions in Kansas last year, according to the state health department. The state already bans most abortions at or after the 22nd week of pregnancy, and 89 percent last year occurred before the 13th week.

The new law would make exceptions to the ban for preserving a woman's life or preventing serious and permanent damage to her physical health. It also wouldn't apply if doctors ensure that the fetus dies before using instruments to remove it from the womb.

The state's lawyers argued that doctors could avoid violating the ban and still perform safe abortions many ways, such as first giving the fetus a lethal injection or by severing its umbilical cord.

But the lawsuit said there have been few studies of the safety of the alternative methods and that lethal injections for the fetus could increase nausea, vomiting and infection in women.

Janet Crepps, a senior attorney for the Center for Reproductive Rights, argued in court Thursday that the ban would result in "forced experimentation" on women seeking second trimester abortions.

She also rejected the state's claims that the ban is permissible because it has an interest in protecting the dignity of human life and promoting more humane alternatives.

"One by one, the Legislature could assert the same interests and ban every single abortion method," she said.