In June, two different lawsuits were filed in Kansas over a new state abortion law. But the lawsuit that Planned Parenthood of Kansas and Mid-Missouri filed on June 20 isn't about the freedom to perform abortions. It’s about freedom of speech.
In her office near downtown Overland Park, Mary Kay Culp pulls up a website called womansrighttoknow.org. It features videos and photos of fetuses at different stages of development as well as information about health impacts of abortions.
Beginning on July 1, all Kansas abortion providers will need to provide a link to this website with a message calling it objective, non-judgmental and scientifically accurate. It’s one of the requirements of the recently-passed House Bill 2253.
Culp, who is State Executive Director of Kansans for Life, explains why her organization pushed for this part of what’s called the “Women’s Right To Know Act.”
“Abortion was legalized under the mantle of choice,” says Culp, “And yet, one really needs a lot of information to make a good choice.”
According to the new law, abortion providers will not only need to link to the website but provide women seeking abortions with additional statements scripted by the state.
A woman's right to know
But Planned Parenthood of Kansas and Mid-Missouri say there’s more going on with the “Women’s Right To Know Act,” than simply informing women.
“The state of Kansas, for the last three years, has been intent on providing information and misinformation intended to persuade someone not to have an abortion, requiring physicians and others who provide abortion services to give misleading information,” explains Peter Brownlie, who is CEO of Planned Parenthood of Kansas and Mid-Missouri.
In a lawsuit filed on June 20, Planned Parenthood claims that the new abortion law, which Kansas passed in April, violates the freedom of speech of abortion providers. Planned Parenthood says the law compels them to endorse information they disagree with and to make misleading statements. Among these is a written statement that abortion providers must give a woman before she can receive an abortion.
“By no later than 20 weeks from fertilization, the unborn child has the physical structures necessary to experience pain.”
Brownlie says this is misleading.
“It raises the suggestion that, at twenty weeks of pregnancy, a fetus experiences pain,” explains Brownlie. “We object to that statement.”
The science behind the statements
While some doctors believe a fetus can feel pain at 20 weeks, proof of this is far from conclusive. A 2012 paper published in the Journal of Maternal –Fetal and Neonatal Medicine surveyed 217 recent studies. The majority of these state that fetuses are incapable of feeling pain until at least the third trimester.
But whether the information that abortion providers are require to give is scientifically conclusive may not matter. At least not according to a similar legal case settled last year.
In 2005, South Dakota passed a law which required abortion providers to tell patients that getting an abortion would put them at increased risk of suicide. Planned Parenthood sued, again, because it claimed providers were being compelled to make misleading statements. The case went through several appeals and ended up in the federal Eighth District court.
Ruthann Robson is Professor of Law and University Distinguished Professor at City University of New York. She says that the court upheld the law in July of 2012 even though the state showed little evidence that abortion causes increased suicide risk.
“It seems as if they relied upon that there didn’t really need to be that evidence to convince the court.” Robson says. “That it’s enough if the state has kind of a reasonable – or can rely on that, even if there are different kinds of evidence.”
In the Planned Parenthood vs. Rounds decision, the court allowed the state to make its own interpretations about medical risks even where there was uncertainty.
“It [kind of says] there really doesn’t need to be a scientific basis,” explains Robson. “Or that maybe ‘risk’ is a term of art.”
The South Dakota law inspired the Kansas law, at least in one part. The two state’s laws share this line:
“Abortion will terminate the life of a whole, separate, unique, living human being.”
The Kansas law requires providers to also give this as a written statement to a woman before she can receive an abortion, and it’s another of the provisions challenged in Planned Parenthood lawsuit.
“That is a religious and ideological statement,” Brownlie says. “It’s not a statement of medical fact or physical fact. The decision about whether or when a human being exists in the course of pregnancy is also complicated and one around which there’s a lot of disagreement.”
Mary Kay Culp believes that saying abortion ends of the life of a human being is simply stating a biological fact.
“It’s ridiculous from a biological point of view that they’re objecting to that or saying it’s religious or philosophical,” says Culp with a laugh. “Now, whether or not it’s right to end the life of a human being – whether it’s right or wrong – one could make the argument that that’s a religious or philosophical point of view.”
Freedom of speech
This issue doesn’t actually affect a provider’s ability to perform an abortion. It basically comes down to a handful of formalities that a few medical professionals in Kansas will have to add to a long list of formalities. So why are groups like Kansans for Life and Planned Parenthood putting so much energy into it? Mary Kay Culp says, for her, it’s a small step in reducing abortions.
“Ideally, anyone who was thinking about abortion would have enough information,” explains Culp, “that they’d realize that is not something they want to do if they care about their future mental or physical health and the health of the culture.”
Brownlie says Planned Parenthood is obligated to protect the freedom of speech of its abortion providers.
“When the physician is being required, in this instance, to put that statement in writing to a patient as part of the informed consent process,” says Brownlie, “We think it’s wrong. We think it’s, again, compelled speech, a violation of the First Amendment, so we believe we have the obligation to challenge it.”
And while cases over compelled speech are not new in the abortion struggle, law professor Ruthann Robson says these cases are happening more often, and more are likely to come.
“It’s definitely been happening a lot more,” explains Robson. “As states are more and more telling doctors what they have to say or organizations what they have to say.”
Planned Parenthood had also sought an immediate injunction to stop the law from being enforced beginning on July 1. A federal judge in Kansas denied the injunction.
While Planned Parenthood failed to receive an injunction, two Kansas doctors succeeded in doing so late last week. On Friday June 28, a Kansas judge blocked the requirement that abortion providers endorse the state's website. The judge also blocked a portion of the law defining a medical emergency.
The hearing for Planned Parenthood’s lawsuit will begin on July 29.