HomeCrimeKansas judge blocks 'abortion reversal' informed consent law

Kansas judge blocks ‘abortion reversal’ informed consent law

Kansas Judge K. Christopher Jayaram follows arguments from attorneys as they argue over a new state law on how providers dispense abortion medications in Johnson County District Court, Tuesday, Aug. 8, 2023, in Olathe, Kan. (AP Photo/John Hanna)

A Kansas judge blocked an “abortion reversal” law Monday, ruling that the state’s requirement that doctors advise patients about the possibility of “reversing” a medication abortion is a free speech violation based on junk science that turns the informed consent process upside down and makes patients “likely to be less informed—not more.”

The ruling blocks portions of a longstanding set of abortion regulations, including the 24-hour waiting period, plus a new requirement that providers recite a script that informs patients that medication abortions can be “reversed.” The claim that an abortion conducted through the use of Mifepristone — the first pill in a commonly-used two-medication abortion regimen — can be “reversed” through doses of other drugs is not accepted science with the medical industry.

Judge K. Christopher Jayaram, a judge appointed by Democratic Gov. Laura Kelly in 2021, issued the 92-page ruling on Monday in the case of Hodes & Nauser v. Kobach. The lawsuit involves the 1997 “Woman’s-Right-to-Know” Act, which requires doctors to obtain written proof of a patient’s informed consent within 24 hours before having an abortion. The original law required an extensive list of specific points that doctors were required to cover with their patients. Over the next decade, the act was amended multiple times, each iteration adding to the exhaustive mandates required of doctors.

In 2023, after the U.S. Supreme Court struck down Roe v. Wade, the Kansas legislature adopted H.B. 2264, an amendment known as the “Medication Abortion Reversal” Amendment.

The amendment, passed over Kelly’s veto, required that a number of warnings and offers of “reversal” be given to anyone seeking a medication abortion. It further required that a “conspicuous sign” be posted at private offices, freestanding clinics, pharmacies, and anywhere else mifepristone is dispensed, as follows:

NOTICE TO PATIENTS HAVING MEDICATION ABORTIONS THAT USE MIFEPRISTONE: Mifepristone, also known as RU–486 or mifeprex, alone is not always effective in ending a pregnancy. It may be possible to reverse its intended effect if the second pill or tablet has not been taken or administered. If you change your mind and wish to try to continue the pregnancy, you can get immediate help by accessing available resources.

The law created a $10,000 per day penalty for violations of the signage requirement and allowed for doctors to be criminally prosecuted. Additionally, the act mandates that non-compliance constitutes “unprofessional conduct” for purposes of medical licensing.

The judge’s ruling Monday blocked enforcement of the law on the grounds that it likely violates both state and federal law.

Jayaram reasoned that, “Because a woman’s right to bodily autonomy (including her right to decide whether to terminate or continue a pregnancy) is fundamental,” and because the doctor-patient relationship is  “intimate and intensely-personal,” the law fails under standards set out under the Kansas State Constitution.

Likewise, he said that despite any “specific moral, ethical, or spiritual concerns” that might weigh in favor of the law, the law appears a clear violation of the First Amendment.

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