Kansas won't force abortion providers to survey women for at least a year under deal

Kansas won’t require abortion providers to survey women about why they’re seeking an abortion as a lawsuit against the new rules plays out in court.

Lawyers for the abortion providers and Kansas Attorney General Kris Kobach reached an agreement in recent days to hold off on enforcing the survey requirement until a final judgment in the legal challenge, which is potentially years away. In exchange, a trial over the rules was delayed until at least next summer, giving both sides more time to prepare.

The deal indefinitely pauses enforcement of HB 2749, a law championed by abortion opponents, who say the survey will produce additional data that can be used to persuade women not to end their pregnancies. The Republican-controlled Legislature enacted the measure this spring over the veto of Democratic Gov. Laura Kelly.

Kansas has emerged as a critical access point for abortion in the center of the country since the U.S. Supreme Court struck down the federal right to an abortion in 2022. The state’s regulations are closely watched in part because of the large numbers of out-of-state patients who are traveling to Kansas for abortions.

The new law mandates abortion providers to survey women, asking them to choose the most important reason for getting an abortion. Those reasons include financial stress, rape, fetal disabilities, or the health of the mother as options. The survey does not include an “other” option, a point of contention for opponents.

Patients are not required to answer, but non-responses are noted.

“We are relieved that this intrusive law will not take effect. This law would have forced abortion providers to collect deeply personal information—an unjustifiable invasion of patient privacy that has nothing to do with people’s health,” the Center for Reproductive Rights, Planned Parenthood Federation of America, and Comprehensive Health of Planned Parenthood Great Plains said in a statement.

The organizations, which are challenging the law, said they “will continue to fight for Kansans’ fundamental right to abortion free from government interference.”

Kobach’s office didn’t respond to a request for comment.

Some abortion restrictions already blocked

The agreement comes in a lawsuit filed in Johnson County District Court against both the survey requirement and other existing regulations.

Those included a 24-hour waiting period for abortions and rules mandating abortion providers, without evidence, post information in clinics and online warning abortions can increase the risk of breast cancer and premature birth in future pregnancies. Judge Christopher Jayaram already blocked those regulations.

Both sides reached the deal after the Kansas Supreme Court in early July reaffirmed its landmark 2019 decision that said the state constitution protects the right to an abortion. The decision found that the constitution includes a right to bodily autonomy and that it’s a fundamental right, meaning restrictions on it must clear the highest legal bar – strict scrutiny.

The Kansas Supreme Court’s latest decision, released July 5, struck down a series of abortion clinic rules and regulations that had been on the books for years, some since 2011, but never enforced because of a long-running legal battle over them. The decision has been welcomed by abortion rights supporters and condemned by abortion opponents.

“It hurts to say, ‘we told you so,’ to the many Kansans who were misled by the abortion industry’s assurances that it would still be ‘heavily regulated’ in our state if voters rejected the 2022 amendment,” Kansans for Life spokesperson Danielle Underwood said in a statement.

Emily Wales, president and CEO of Comprehensive Health of Planned Parenthood Great Plains, said in a statement the Kansas Supreme Court “continues to evaluate evidence, follow precedent, and uphold fundamental rights.”

In the wake of the ruling, Kobach is arguing the survey requirements don’t infringe on fundamental rights and shouldn’t have to withstand strict scrutiny. In a legal brief filed in court on Monday, lawyers working on behalf of the attorney general outlined their case for why HB 2749 is constitutional.

“H.B. 2749 is merely a standard information reporting statute – well within the traditional and broad purview of the State to regulate the healing arts,” the brief says. “Because it neither infringes a fundamental right nor falls outside the traditional bounds of state regulation, the amendment need only bear a rational relation to some legitimate end to survive.”

The abortion providers argue in their own court filings that the survey law “interferes with the personal decision-making of pregnant people seeking abortion,” inserts the state into the patient-provider relationship and forces providers to act as agents of Kansas to collect private, non-clinical data.

GOP lawmakers pushing limits

The legal battle over the survey requirement is the latest test of Kansas abortion rights put forward by Republican lawmakers since voters in August 2022 rejected a state constitutional amendment that would have given the Legislature the power to ban abortion. Since that vote, abortion opponents have been trying to see how far they can go in limiting or regulating access to the procedure under the Kansas Supreme Court’s 2019 decision.

How far lawmakers can go holds consequences for Kansas’ future status as an abortion rights stronghold in the Great Plains. Missouri, Oklahoma, Arkansas and Texas all ban abortion – and thousands of women from those states are traveling to Kansas each year for the procedure.

The Guttmacher Institute, a research organization supportive of abortion rights, estimates that 20,700 clinician-provided abortions took place in Kansas in 2023. The Kansas Department of Health and Environment will release official statistics late this year.

The agency previously posted preliminary data in the summer every year but halted that practice this year without explanation.