Physicians Testify Against Kansas TRAP Law


If Dorothy were alive today, she’d be breathing a sigh of relief as she turned to Toto and said: “We’re not in Kansas anymore.”  In fact, she’d probably opt to stay in Oz.  Because for a woman, any woman, to be in Kansas today is to live in a state of unreality so absurd even the Wizard of Oz would be hard pressed to compete.

Kansas officials took public comment this month and held a public hearing this morning toward developing final regulations on abortion providers that have nothing to do with health, safety, or rational economic considerations. Fundamentalist anti-choice conservatives in the state are using medical law and regulations to undermine the basic human rights, health, and lives of women solely for political advantage.  And they are in a rush to do so.

Before examining Kansas’s TRAP law, it’s important to reiterate that legal, early surgical termination of pregnancy performed by a trained provider is among the safest possible surgical procedures of any kind, anywhere

Normally, regulation of medical facilities providing surgery–whether this be oral surgery, foot surgery, abortion care, heart surgery, or complicated transplants–is normally done according to function. Hospitals providing highly complex and invasive surgeries and requiring an overnight stay must meet regulations ensuring they have the sophisticated equipment and facilities up to the tasks they perform. Ambulatory surgical centers (ASCs) which perform a range of both simple and more complex surgeries requiring deep sedation or general anesthesia are required to have facilities suitable to these kinds of procedures, that is to say, more sophisticated than medical offices, but not the same as hospitals. Office-based providers that conduct out-patient surgery procedures not requiring deep sedation or general anesthesia, like abortion care and the far more painful (believe me) oral surgery I have had in an office, have in Kansas been subject to a set of regulations appropriate to the procedures they perform.  Again, abortion procedures are among the safest of all medical procedures conducted in the United States; complication rates for oral surgery are many times that of abortion care. To repeat: Appropriate medical regulations keep patients safe and increase access to care.

But that’s the point: Kansas lawmakers don’t want women to have access to safe abortion care, so they actually are attempting to make it less safe by reducing access.

The new Kansas regulations are the result of a new law that would require any hospital, surgical center, clinics or doctor’s office that performs five or more abortions per month to obtain a special, annual license.  The law itself, however, does not prescribe the conditions under which those licenses are provided, therefore the medically-inappropriate regulations originally released are themselves the work of the state agency vested specifically with protecting public health.

As noted by the Associated Press:

Before passing the licensing law, legislators didn’t cite or compile data showing that abortion has a higher rate of death or complications than other procedures done in doctor’s offices and clinics.

Ready to find that yellow brick road?

Both the law and a set of temporary regulations hastily thrown together by the Kansas Department of Health and Environment (KDHE) were blocked by a federal court in July.  Working at the behest of Governor Sam Brownback and a rabidly anti-woman legislature, KDHE wanted to put through the final regulations without public comment, hearings, or consideration of changes, but a small thing known as due process got in the way. There is no statutory requirement for when the final regulations are published.  But if KDHE hadn’t taken any public comments and had not followed the state’s own legal process, the temporary regulations would have expired at the end of October 2011. So KDHE flew into action to accept written comments before churning out the new regulations.  That way, there is no question that they can undermine access to safe abortion care in the quickest possible way.

The original federal lawsuit was filed by Dr. Herbert Hodes and Dr. Traci Nauser, his daughter and partner in practice at the Center for Women’s Health in Overland Park, Kansas. Hodes and Nauser were represented in the federal suit by the Center for Reproductive Rights.

In their comments submitted to KDHE, Hodes and Nauser underscore flaws in the temporary regulations originally published, and point to changes that could be made to correct these. According to CRR, if KDHE did draft and publish medically-accurate regulations, the doctors might consider dropping their lawsuit.

Among the regulations critiqued by Hodes and Nauser are the requirement that each office providing abortion care have designated dressing rooms for patients with separate toilets, hand washing, and storage for clothing and valuables. “While patients certainly need a private space for changing and a place to store their belongings, these can be appropriately provided without constructing designated dressing rooms with bathroom and storage facilities.” In many facilities,” they continue, patients change in the room in which they will undergo their procedures.” Hodes and Nauser recommended that the regulation be changed simply to ensure that all patients have a private area of changing their clothes and a secure place for storing their clothing and valuables.  Likewise, instead of requiring separate dressing rooms for staff requiring significant changes to the physical plant of an office, Hodes and Nauser recommend the regulations state that staff be given a private area in which to dress.

Another regulation critiqued by Hodes and Nauser is the requirement that offices provide multiple separate toilet facilities for patients, staff, and the public.  “There is no medical reason nor standard of care that would necessitate an office-based practice such as ours to have these multiple toilet facilities,” they note. 

The proposed regulations also mandate the size of procedure rooms of “at least 150 square feet, excluding fixed cabinet areas,” each with its own janitor’s closet of 50 square feet. According to the regulations, recovery rooms must have at least 80 square feet of space for each patient, a size that I am quite sure exceeds the space in my own recovery “slot” when I had an appendectomy, or gave birth to my kids.

A procedure room of this size for the performance of abortions, write Hodes and Nauser, is neither medically necessary nor required by the applicable standards of care.  Indeed, they note, “even hospitals and ASCs in Kansas, which provide far more invasive and complex procedures, are not mandated to have procedure rooms this size.”  Instead, they recommend a regulation that requires procedure rooms to be large enough to accommodate all necessary equipment and personnel and to allow for expeditious access to the patients” and all necessary equipment.

The list of unnecessary and unsound regulations goes on from there, each one crafted not to keep anyone safe nor to ensure the best possible medical outcomes for women. but to limit access to abortion care by shutting down providers and making the cost of procuring an early abortion out of reach of the majority of women. In turn, these steps undermine women’s rights to self-determination and their own determination of whether they can or are willing to bear a child. Women in Kansas will literally be forced to carry pregnancies they do not want.

Still, when asked why these regulations are being written, despite the fact that they are widely critiqued as medically unnecessary and likely to diminish access to abortion care, Myra Mayrick, communications director at KDHE, stated that they are being put in place to “protect the health and safety of women.”

That’s kind of like the Wicked Witch telling you she’s locking you up in her castle for “your own good.”

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