Hodes & Nauser v. Stanek

551 P.3d 62

HODES & NAUSER, MDS, P.A., and Traci Lynn Nauser, M.D., Appellees,

v.Janet STANEK, in Her Official Capacity as Secretary of the Kansas Department of Health and Environment; Stephen M. Howe, in His Official Capacity as District Attorney for Johnson County, Kansas; and Kris Kobach, in His Official Capacity as Attorney General for the State of Kansas, Appellants.

No. 125,051

Supreme Court of Kansas.

Oral Argument Held March 27, 2023

Opinion Filed July 5, 2024

West Codenotes

Held Unconstitutional

Kan. Stat. Ann. §§ 65-4a01, 65-4a02, 65-4a03, 65-4a04, 65-4a05, 65-4a06, 65-4a07, 65-4a08, 65-4a09, 65-4a10, 65-4a11, 65-4a12

Syllabus by the Court

1. Kansas courts use a two-part standing test. First, the party who claims standing must show a cognizable injury. Second, the party must establish a causal connection between the cognizable injury and the challenged conduct. A cognizable injury, or an injury in fact, occurs when the party personally suffers an actual or threatened injury because of the challenged conduct.

2. A challenge to a statute’s constitutionality presents a question of law subject to unlimited review.

3. The Kansas Supreme Court is the final authority on whether a Kansas statute violates the Kansas Constitution.

4. Section 1 of the Kansas Constitution Bill of Rights protects an inalienable natural right of personal autonomy, which includes the right to abortion. The unique and profound attributes of the decision to have an abortion are integral to a woman’s inalienable natural right of personal autonomy under section 1; thus, laws that infringe on the right to abortion are subject to strict scrutiny.

5. Under strict scrutiny, the initial burden is on the plaintiff to prove a challenged law actually infringes on a constitutionally protected right under section 1 of the Kansas Constitution Bill of Rights. Any degree of actual infringement on such a right—however slight—triggers strict scrutiny.

6. Once a plaintiff proves actual infringement of a protected right under section 1, the court presumes the law is unconstitutional and the burden shifts to the State to defend the challenged law under strict scrutiny. Strict scrutiny requires the State to prove (a) the existence of a compelling government interest, (b) its actions further that compelling interest, and (c) its actions do so in a way that is narrowly tailored.

7. A compelling interest is extremely weighty, possibly urgent, and rare—much rarer than merely legitimate interests and rarer too than important interests.

8. Once the State establishes an interest as compelling, the State must show any regulations it claims further that interest do so in fact, not merely in theory, and the regulations are a substantially effective means for advancing the State’s identified compelling interest. A court’s determination about whether the State met this burden must be based on evidence presented in judicial proceedings. Mere deference to legislative or administrative findings or stated goals is insufficient.

9. A severability clause is merely an aid, and courts must still divine the intent of the Legislature from the statute’s text. Legislative intent is the touchstone of statutory interpretation.

10. For parts of a legislative enactment to survive a severability analysis, the State must prove (a) the Legislature would have passed the enactment at issue without the objectionable portion and (b) the enactment can still operate effectively to carry out the Legislature’s intent without the stricken portion. The severability test is inapplicable when the entire statutory scheme is objectionable.

Appeal from Shawnee District Court; Mary E. Christopher, judge.

Anthony J. Powell, solicitor general, argued the cause, and Brant M. Laue, former solicitor general, Jeffrey A. Chanay, former chief deputy attorney general, Dwight R. Carswell, deputy solicitor general, Shannon Grammel, former deputy solicitor general, Kurtis K. Wiard, assistant solicitor general, and Derek Schmidt, former attorney general, were with him on the briefs for appellants.

Caroline Sacerdote, pro hac vice, of Center for Reproductive Rights, of New York, New York, argued the cause, and Hillary Schneller, pro hac vice, of the same organization, and Teresa A. Woody, of The Woody Law Firm P.C., of Kansas City, Missouri; were with her on the brief for appellees.

The opinion of the court was delivered by Standridge, J.:

At issue are a series of statutes and implementing regulations ("Challenged Laws") relating to licensure of abortion provider facilities. An abortion care facility and its doctors ("Providers") challenged the constitutionality of the Challenged Laws and requested the Shawnee County District Court enjoin the State from enforcing them. The district court issued a temporary order enjoining enforcement of the Challenged Laws pending a final judgment.

After discovery, the parties filed cross-motions for summary judgment. The district court granted the Providers a declaratory judgment and issued a permanent injunction restraining the State from enforcing the Challenged Laws. The district court held (1) the Challenged Laws infringe on a woman’s fundamental right to personal autonomy guaranteed under section 1 of the Kansas Constitution Bill of Rights and are thus subject to strict scrutiny, (2) the Challenged Laws do not survive strict scrutiny because they do not further the State’s identified compelling interest and are not narrowly tailored to that end, (3) no part of the Challenged Laws can operate independently under the statute’s severability clause, and (4) the Challenged Laws violate the equal protection provisions of the Kansas Constitution.

The State appeals and we affirm. As explained, the State failed to meet its evidentiary burden to show the Challenged Laws further its identified compelling interest in protecting maternal health and regulating the medical profession as it relates to maternal health. Without this showing, the Challenged Laws do not survive strict scrutiny and are constitutionally infirm. We decline the State’s request to sever the unconstitutional licensure requirements because the State failed to meet its burden to show severability is proper under applicable Kansas law. Finally, we deem it unnecessary to address the district court’s finding of an equal protection violation because we are affirming the district court’s decision on grounds that the State failed to satisfy its burden to show the Challenged Laws further a compelling state interest.

Factual and Procedural Background

Hodes & Nauser, MDs, P.A., operates the Center for Women’s Health (CWH), a medical practice providing obstetrical and gynecological care, including abortion care. Dr. Traci Nauser is a board-certified obstetriciangynecologist licensed to practice medicine in Kansas. She provides abortion care up to 21.6 weeks LMP (21 weeks and 6 days since the patient’s last menstrual period). Along with her practice at CWH, Dr. Nauser provides hospital-based care to patients who need services in that setting including antepartum care; vaginal and cesarean deliveries; postpartum care; obstetrical and gynecological surgeries; and labor inductions. Dr. Nauser’s father, Dr. Herbert Hodes, founded CWH in 1978 and practiced there until his 2017 retirement. CWH has provided abortion care in the same physical facility for more than 30 years.

The Kansas Board of Healing Arts has long regulated licensed clinicians like Dr. Hodes and Dr. Nauser and the care they provide at medical offices like CWH. The Board’s regulations define medical "office" as "any place intended for the practice of the healing arts in the State of Kansas." K.A.R. 100-25-1(f). Board regulations specifically exclude hospitals, ambulatory surgical centers (ASCs), or recuperation centers from its definition of medical office because those facilities already are licensed and regulated by the Kansas Department of Health and Environment (KDHE). K.A.R. 100-25-1(f).

Relevant to CWH, Board regulations include standards for maintaining cleanliness; infection control and the disposal of biological waste; maintaining drugs, supplies, and medical equipment; maintaining the safety of the physical facility; reporting hospital transfers; investigating and disciplining clinicians; and administering sedation or anesthesia, includ- ing local and general anesthesia, as well as spinal and epidural blocks. K.A.R. 100-25-1 et seq. The district court found CWH complied with these applicable standards of care for providers of office-based surgery. It also found CWH followed the clinical standards set out by the American College of Obstetricians and Gynecologists, the leading medical professional organization for OB/GYNs in the United States, and the National Abortion Federation, the leading medical professional association for clinicians providing abortion care in North America.

Despite preexisting Board regulations governing licensed clinicians working in a clinic providing office-based surgery, the Legislature in 2011 passed S.B. 36, which created a new KDHE licensing requirement targeting medical facilities that provide abortion care. See K.S.A. 65-4a01 et seq. S.B. 36 defines facility as "any clinic, hospital or ambulatory surgical center, in which any second or third trimester elective abortion, or five or more first trimester elective abortions are performed in a month, excluding any abortion performed due to a medical emergency." K.S.A. 65-4a01(g). Given hospitals and ambulatory surgical centers are already required to be licensed by KDHE, the practical effect of the new law is limited to creating a KDHE licensing regimen for clinics providing abortion care.

As required by S.B. 36, KDHE adopted temporary regulations to carry out its purpose. See K.S.A. 65-4a09. The 30-page temporary regulations included extensive requirements for all aspects of medical abortion facilities including staffing, procedures, equipment, and physical environment. Two days...