Under the tenures of Governor Sam Brownback and other pro-life leaders in legislature, Kansas has aggressively implemented a life-affirming legal strategy for protecting women and their unborn children. Since 2011, Kansas has, among other measures, limited the availability of abortion, adopted protective abortion clinic regulations, and ensured that taxpayers dollars are not used to subsidize abortions or abortion providers like Planned Parenthood.
- Kansas bans abortions at or after 5 months (i.e., 20 weeks on the basis of pain experienced by unborn children.
- Kansas prohibits sex-selection abortions.
- Kansas prohibits partial-birth abortion.
- The state maintains a “delayed enforcement” provision prohibiting abortion should Roe v. Wade be overturned.
- Kansas permits abortions after viability only when an abortion provider has the documented referral from another physician not legally or financially affiliated with the abortion provider and both physicians determine that (1) the abortion is necessary to preserve the life of the pregnant woman, or (2) a continuation of the pregnancy will cause a substantial and irreversible impairment of a major bodily function of the pregnant woman.For purposes of the prohibition, for the “medical emergency” exception to apply, the underlying condition must be physical in nature and not resulting from the woman’s own behavior.
- Under Kansas law, a physician may not perform an abortion until at least 24 hours after a woman has received complete and accurate information on the proposed abortion method, the risks of the proposed abortion method, the probable gestational age of the unborn child, the probable anatomical and physiological development of the unborn child, the medical risks of carrying a pregnancy to term, and the name of the physician who will perform the abortion. Further, a woman must be informed that “abortion will terminate the life of a whole, separate, unique, living human being” and be provided written information on medical assistance benefits, agencies offering alternatives to abortion, the father’s legal liability, and the development of the unborn child. In 2013, the state amended the law to include information on fetal pain and the right to view an ultrasound image, as well as the risks of breast cancer and pre-term birth following abortion.
- Women must also be informed that the state-mandated written materials are also available online and provided a list of organizations providing free ultrasound examinations.
- All women in “medically challenging pregnancies” must be given a list of websites for national perinatal assistance including information regarding which entities provide these services free of charge. Similarly, the state has authorized grants, contracts, or cooperative agreements to help a family after they learn that their child has Down syndrome or other conditions.
- Kansas requires an ultrasound evaluation for all women seeking an abortion. The physician or other healthcare professional must review—at the request of the patient—the ultrasound evaluation results including the probable gestational age of the unborn child with the patient before the abortion procedure is performed.
- The state includes information about the abortion-breast cancer link in the educational materials a woman must receive prior to abortion.
- The state requires abortion providers to state in their printed materials that it is illegal for someone to coerce a woman into having an abortion. Clinics must also post signs stating it is illegal to force a woman to have an abortion.
- A physician may not perform an abortion on an unemancipated minor under the age of 18 without the written, notarized consent of two parents, unless there is a medical emergency or the minor obtains a court order. The consent of only one parent is required when the parents are not married to each other, one cannot be found, or the minor is the victim of incest by her father (which must be reported).
- Any physician who performs an abortion on a minor under the age of 14 must retain fetal tissue extracted during the procedure and send it to the Kansas Bureau of Investigation. The tissue is to be submitted “for the purpose of DNA testing and examination” and will be used to investigate (and, potentially, prosecute) incidents of child rape and sexual abuse.
- In 2011, Kansas enacted comprehensive health and safety regulations for abortion clinics which include a requirement that the clinic be licensed by the state. This law is currently in litigation.
- The state requires that a physician performing abortions have admitting privileges at an accredited hospital located within 30 miles of the abortion facility.
- Kansas has an enforceable abortion reporting law, but does not require the reporting of information to the Centers for Disease Control (CDC). The measure pertains to both surgical and nonsurgical abortions. Kansas also requires reporting of the medical reasons supporting the termination of a late-term pregnancy.
- Kansas also requires reporting of the medical reasons supporting the termination of a late-term pregnancy
- Kansas mandates that the state Department of Social and Rehabilitation Services produce and distribute a report on the number of child abuse reports received from abortion providers.
- Kansas follows the federal standard for Medicaid funding for abortions, only permitting the use of federal or state matching Medicaid funds for abortions necessary to preserve the life of the woman or when the pregnancy is the result of rape or incest.
- A Kansas law eliminating Title X funding for abortion providers is currently in litigation.
- No state funds may be expended for any abortion, and tax benefits for abortion or abortion providers are specifically prohibited.
- Contracts with the Kansas Department of Health and Environment’s pregnancy maintenance program may not be granted to groups that promote, refer for, or educate in favor of abortion.
- Abortions may not be performed in any facility, hospital, or clinic owned, leased, or operated by the University of Kansas Hospital Authority unless necessary to preserve a woman’s life or prevent “a serious risk of substantial and irreversible impairment of a major bodily function.”
- Kansas prohibits abortions in state-run or state-leased facilities except when necessary to save the woman’s life.
- School districts, district employees or volunteers, and educational service providers are prohibited from contracting with a school district to provide abortion services (except when necessary to save the woman’s life).
- Public health benefits coverage for children cannot be used for abortions or abortion coverage.
- Kansas prohibits private insurance companies from covering abortion, except in cases of life endangerment. Further, the state employee health benefits plan may not provide coverage for abortion except in cases of life endangerment.
- Kansas also prohibits insurance companies from offering abortion coverage within state insurance Exchanges established pursuant to the federal healthcare law, except in cases of life endangerment.
- When RU-486 or any drug is used for the purpose of inducing an abortion, the drug must be administered by or in the same room and in the physical presence of the physician who prescribed, dispensed, or otherwise provided the drug to the patient.
- The state provides direct funding to pregnancy resource centers and other organizations promoting abortion alternatives.
Legal Recognition and Protection of Unborn and Newly Born:
- Under Kansas law, an “unborn child” (from fertilization to birth) is a potential victim of murder, manslaughter, vehicular manslaughter, and battery.
- Kansas defines criminal assaults on a pregnant woman that result in miscarriage, stillbirth, or “damage to pregnancy” as an enhanced offense for sentencing purposes.
- The state allows a wrongful death (civil) action when a viable unborn child is killed through negligent or criminal act.
- The state prohibits wrongful birth and wrongful life lawsuits.
- Kansas law requires that an attending physician take “all reasonable steps necessary to maintain the life and health” of a child (at any stage of development) who survives an attempted abortion.
- Kansas maintains no laws banning human cloning, destructive embryo research, or fetal experimentation, nor does it regulate human egg harvesting.
- However, the state has enacted a measure promoting the morally responsible growth of the biotechnology industry. The state has specifically indicated that the terms “bioscience,” “biotechnology,” and “life sciences” shall not be construed to include 1) induced human abortions or the use of cells or tissues derived therefrom, and 2) any research the funding of which would be contrary federal law. The law effectively prohibits funding of human cloning and destructive embryo research.
- Kansas has directed the state Department of Health and Environment to develop and make available education and training (for healthcare providers) in the basic procedures and requirements for collecting and maintaining umbilical cords, cord blood, amniotic fluid, and placenta donations. A healthcare provider providing health services to a pregnant woman shall advise her of post-delivery options to donate the umbilical cord.
- Kansas maintains no meaningful regulation of assisted reproductive technologies.
End of Life Laws:
- In Kansas, assisting a suicide is a felony.
- Kansas maintains a “Pain Patient’s Bill of Rights,” which, among other provisions, allows physicians to prescribe a dosage of opiates deemed medically necessary to relieve pain. The law does not expand the scope of medical practice to allow physician-assisted suicide or euthanasia.
Healthcare Freedom of Conscience Laws:
Participation in Abortion:
- No person may be required to participate in medical procedures that result in abortion.
- No hospital may be required to perform abortions in its facilities.
- Kansas permits an individual or healthcare facility to refuse to perform, make referrals for, or participate in abortion services or services that the individual or facility “reasonably believes” would end a pregnancy.
- The state provides some protection for the civil rights of pharmacists and pharmacies.
Participation in Research Harmful to Human Life:
- Kansas currently provides no protection for the rights of healthcare providers who conscientiously object to participation in human cloning, destructive embryo research, or other forms of medical research, which violate a provider’s moral or religious belief.
What Happened in 2013:
- Kansas enacted a measure prohibiting sex-selection abortions and adopted a “delayed enforcement” provision prohibiting abortion should Roe v. Wade be overturned.
- It also enacted an omnibus measure that includes a provision amending the state’s late-term abortion prohibition and clarifying that a “medical emergency” must be physical in nature (and not resulting from the woman’s own behavior) in order for the exception (to the late-term prohibition) to apply.
- Kansas amended its informed consent requirements to include information on fetal pain and the right to view an ultrasound image, as well as the risks of breast cancer and pre-term birth following abortion. It also expanded the definitions of “counselor” and “qualified person” (who may provide the required information) and added detailed information on fetal development to the state-sponsored informed consent materials.
- The state amended the information that must appear on anti-coercion signs posted in abortion facilities to include the address for the state’s pregnancy resources website.
- Kansas enacted a requirement that women in “medically challenging pregnancies” be given a list of websites for national perinatal assistance including information regarding which entities provide such services free of charge. Similarly, the state authorized grants, contracts, or cooperative agreements to help a family after they learn that their child has Down syndrome or other conditions.
- In a busy legislative session, the state also enacted a measure providing that no state funds may be expended for any abortion and prohibiting tax benefits for abortion or abortion providers.
- Kansas prohibited abortions in state-run or state-leased facilities (except when necessary to save the woman’s life). Further, school districts, district employees or volunteers, and educational service providers are prohibited from contracting with a school district to provide abortion services (except when necessary to save the woman’s life).
- The Kansas House and Senate adopted a resolution commending pregnancy resource centers.
- Kansas enacted a prohibition on wrongful birth and wrongful life lawsuits, as well as a measure that would provide for fetal death or stillbirth certificates or requiring registration of such deaths.
- Kansas considered a measure related to wrongful death (civil) causes of action for the death of unborn children.
- On the bioethics front, the state amended its stem cell therapy statute to require reporting on expenditures.
- Kansas considered a bill to legalize physician-assisted suicide.
Recommendations for Kansas
Women’s Protection Project Priorities:
- Abortion Patients’ Enhanced Safety Act
- Parental Involvement Enhancement Act
- Components of the Child Protection Act related to mandatory reporters of suspected child sexual abuse and remedies for third-party interference with parental rights
- Prenatal Nondiscrimination Act</li
- Joint Resolution Commending Pregnancy Centers
Legal Recognition and Protection for the Unborn:
- Unborn Wrongful Death Act (for a pre-viable child)
- Human Cloning Prohibition Act
- Destructive Embryo Research Act
- Prohibition on Public Funding of Human Cloning and Destructive Embryo Research Act
Healthcare Freedom of Conscience:
- Healthcare Freedom of Conscience Act