The legal drama surrounding two Kansas pro-life laws handed the pro-life movement a huge win this week. Laws surrounding telemedicine and whether a doctor is required to be physically present when a woman is given the chemical abortion pill have been wrapped up in litigation for years.
This specific lawsuit has to do with a law passed during the 2018 legislative session known as the Kansas Telemedicine Act and a 2015 statute that required that a doctor be present when an abortion is performed. I wrote about the most recent court actions back in January.
The abortion lobby has gotten used to courts handing out injunctions like candy, but finally, a Kansas court stood up for the rule of law and did not grant an injunction when the law being challenged did not present a harm to the abortionists suing. For an injunction to be granted there must be a cognizable harm to the actual person who is bringing the lawsuit.
The court pointed out that the doctors who brought the challenge could not show that they had ever performed telemedicine abortions (commonly known as webcam abortions) or that they had stopped performing them because of these laws. In fact, the clinic only started performing them AFTER the law was passed. A foundational principle of law is that the person challenging the law must actually be harmed by the proposed law and that courts won’t issue opinions just because they disagree with a law.
The court did not specifically analyze this law under the Kansas Supreme Court’s new right to abortion because it said that the Telemedicine Act was not regulating abortion. The court said that the Telemedicine Act was just stating that it should not be construed to allow telemedicine abortions.
Because the court opted to decide the case on grounds other than abortion law, we are still left in the dark regarding how the Kansas Supreme Court’s extreme abortion ruling will affect the constitutionality of many of our statutes. But if even a basic law – ensuring that a doctor is in the room when a women is taking medicine that potentially has many health consequences for her, not to mention the consequences for the baby inside her – can be legitimately challenged, it doesn’t bode well for many of the other laws that truly help women and protect babies.
We are incredibly grateful for judges like District Court Judge Watson who issued this decision. Her commitment to ensuring that the judiciary does not exceed its proper role is refreshing. The courts were never meant to be the final arbiters of every controversial issue. These issues were always intended to be decided by the elected legislative bodies. For today, we celebrate this victory.
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