In the last week of April, lawmakers in Kansas overrode two vetoes by the state’s Democratic Governor to enact provisions that mean healthcare providers could face criminal charges over accusations of their care of newborns delivered during enumerated abortion procedures. Under the new law, the state must provide $2 million to centers run by abortion opponents, and clinics are required to notify patients that medication abortions can be stopped using a drug regimen (one that has been deemed to be dangerous by medical experts).
 

On March 22, the House approved a measure (HB 2313) requiring physicians to “exercise the same degree of professional skill, care, and diligence to preserve the life and health” of a child born after an attempted abortion as another infant. Any physician in violation would be open to civil action or felony charges.
 

In Kansas, post-Dobbs, a trigger law effectively abolished abortion care within the state. In what would prove to be a promising sign of trends to come across the nation, a few months later, more than half (60%) of Kansans voted in support of a referendum to keep the right to an abortion in the state’s Constitution. Despite this, Republican lawmakers, in 2023, have signaled a continued desire and willingness to overturn the will of the people and introduced legislation to allow cities and counties to enact abortion restrictions. As in other Republican-led states where voters rejected post-Dobbs anti-abortion proposals at the polls, anti-abortion policymakers are also choosing to await pending court decisions with import for abortion access, and pivoting to advance alternative measures, including funding for crisis pregnancy centers and legislative proposals that include exceptions for things including protecting the life of a mother and rape or incest (See, https://omaha.com/news/national/govt-and-politics/anti-abortion-allies-change-tactics-after-post-roe-defeats/article_5827e8c5-0d62-5eb9-b2af-6a9c1be8b4fd.html).

In November of last year, a Kansas district court blocked the state’s statutory ban on physicians prescribing abortion-inducing medication via telemedicine (See https://www.kcur.org/2022-11-28/kansas-judge-blocks-law-banned-prescribing-abortion-pills-telemedicine). Despite this ruling, the state’s Attorney General issued a stern warning to Walgreen’s advising he would consider any such provision of abortion medication by mail within the state to be an enforceable violation of law (the very law that is on pause under a preliminary injunction) (The letter Attorney General Kobach sent can be viewed here: abortion-pill-letter.pdf (ks.gov) (accessed February 2023).).

Republican attorneys general from 20 states warned both CVS and Walgreen’s pharmacies not to provide abortion pills through mail-order service (For the full text of these letters and additional context, see: Attorney General Bailey Directs Letter to CVS and Walgreens Over Distribution of Abortion Pills (mo.gov) (accessed February 2023).). In response, Walgreen’s announced that it will cease distribution of the abortion medication mifepristone in 20 Republican-led states where newly enacted laws and pending lawsuits threaten the legality of its distribution. In a statement, Walgreens signaled its intent “to be a certified pharmacy” and to “distribute mifepristone only in those jurisdictions where it is legal and operationally feasible (See letter from Walgreens Boots Alliance Executive Director Danielle Gray to OH Attorney General Dave Yost, February 21, 2023: https://acrobat.adobe.com/link/track?uri=urn%3Aaaid%3Ascds%3AUS%3Ad9a846ec-9eed-4c2c-a8f2-057201025942&viewer%21megaVerb=group-discover (accessed February 2023).
 

• Kansas prohibits or restricts abortion in various ways, including:
  • Prohibiting abortion both after viability and after 22 weeks, unless necessary to save life of the pregnant woman or prevent major damage to bodily function.
  • Imposing additional restrictions on certain abortion techniques and on abortions based on the sex of the fetus. Kan. Stat. Ann. §§ 65-6703; -6721; -6724; -6743; -6726.
• Kansas codified a legislative declaration that life begins at fertilization and accords the same rights to unborn children beginning at fertilization as are available to other residents of the state, subject to other State laws and the constitutions of the U.S. and Kansas. Kan. Stat. Ann. § 65-6732.

• It does not appear that current abortion restrictions in Kansas will apply to IVF or other reproductive medicine services outside the context of a pregnancy.
• A legislative declaration that life begins “at fertilization” and stating that the laws of Kansas shall be interpreted and construed to “acknowledge on behalf of the unborn child at every stage of development, all the rights, privileges and immunities available to other persons, citizens and residents of this state” could theoretically be interpreted to impact IVF and ART procedures by imposing restrictions on the disposition of embryos. Kan. Stat. Ann. § 65-6732. However, there is currently a carve-out provision in Kansas law for disposition of products of in vitro fertilization before implantation. Kan. Stat. Ann. § 65-6702.
• Current law relating to rights of children conceived through ART includes a provision stating that “the technique of heterologous artificial insemination may be performed in this state” with consent of married couple wanting to conceive children. Kan. Stat. Ann. § 23-2301.
• Current law in Kansas includes a provision stating that the “disposition of the product of in vitro fertilization prior to implantation” is lawful in the state. Kan. Stat. Ann. § 65-6702.

• “Abortion” is defined as “the use or prescription of any instrument, medicine, drug or any other substance or device to terminate the pregnancy of a woman known to be pregnant with an intention other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, or to remove a dead unborn child who died as the result of natural causes in utero, accidental trauma or a criminal assault on the pregnant woman or her unborn child, and which causes the premature termination of the pregnancy.” Kan. Stat. Ann. §65-6701.
• “Pregnant” or “pregnancy” means “that female reproductive condition of having an unborn child in the mother’s body.” Kan. Stat. Ann. §65-6701; See also § 65-6723
• In a legislative declaration that life begins at fertilization, “fertilization” means “the fusion of a human spermatozoon with a human ovum” and “unborn child” means “all unborn children or the offspring of human beings from the moment of fertilization until birth at every stage of biological development.” Kan. Stat. Ann. § 65-6732.
• The Kansas law setting forth required information to be provided prior to performing an abortion defines “human being” as “an individual living member of the species of homo sapiens, including the unborn human being during the entire embryonic and fetal ages from fertilization to full gestation.” Kan. Stat. Ann. § 65-6709. 

• A person who violates the state’s abortion restrictions may be subject to civil and criminal penalties. Kan. Stat. Ann. §§ 65-6703; -6721; -6724; -6746.
• Any physician who intentionally, knowingly or recklessly fails to provide information required prior to abortion is “guilty of unprofessional conduct.” Kan. Stat. Ann. § 65-6712.