Trust Women Foundation, Inc. v. Bennett ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 121,693
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
TRUST WOMEN FOUNDATION INC.,
d/b/a SOUTH WIND WOMEN'S CENTER,
d/b/a TRUST WOMEN WICHITA,
Appellant,
v.
MARC BENNETT, District Attorney for Sedgwick County, KATHLEEN SELZLER LIPPERT,
Executive Director of the Kansas Board of Healing Arts, ROBIN D. DURRETT, President
of the Kansas Board of Healing Arts, and DEREK SCHMIDT, Attorney General of Kansas,
Appellees.
MEMORANDUM OPINION
Appeal from Shawnee District Court; TERESA L. WATSON, judge. Opinion filed May 20, 2022.
Reversed and remanded with directions.
Anne M. Kindling, of Joseph, Hollander & Craft LLC, of Topeka, Robert V. Eye, of Robert V.
Eye Law Office, of Lawrence, Gail M. Deady, pro hac vice, of Center for Reproductive Rights, of New
York, New York, Jessica Sklarsky, pro hac vice, of the same firm, Kirby Tyrrell, pro hac vice, of the same
firm, and Marc A. Hearron, pro hac vice, of the same firm, of Washington, D.C., for appellant.
Courtney E. Cyzman, assistant general counsel, of Kansas State Board of Healing Arts, and
Tucker L. Poling, general counsel, of the same agency, for appellees Kathleen Selzler Lippert and Robin
D. Durrett.
Brant M. Laue, deputy solicitor general, Jeffrey A. Chanay, chief deputy attorney general, Shon
D. Qualseth, senior trial counsel, and Derek Schmidt, attorney general, for appellees Marc Bennett and
Derek Schmidt.
Before ARNOLD-BURGER, C.J., SCHROEDER, J., and RICHARD B. WALKER, S.J.
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ARNOLD-BURGER, C.J.: This lawsuit, brought against Attorney General Derek
Schmidt, Sedgwick County District Attorney Marc Bennett, and the President and the
Director of the Kansas Board of Healing Arts by a Kansas abortion provider and its
patients, challenges the constitutionality of K.S.A. 65-4a10. The statute requires any
abortion-inducing drug "be given to the patient by or in the same room and in the
physical presence of the physician who prescribed, dispensed or otherwise provided the
drug or prescription to the patient." K.S.A. 65-4a10(b)(1)(B). This results in the inability
of a legal abortion provider, Trust Women Foundation Inc. (Trust Women), to provide
abortion services via telemedicine. As a result, Trust Women requested that the court
issue a temporary injunction against enforcement of the statute. It claimed that there was
a reasonable probability it would suffer irreparable injury if the statute were to be
enforced pending a determination of its constitutionality. The district court denied
injunctive relief. It also dismissed Trust Women's action against the Kansas Board of
Healing Arts, finding Trust Women lacked standing to sue the Board. Trust Women
appeals both rulings.
Because we find that the district court abused its discretion in denying injunctive
relief to Trust Women, we reverse and remand this case to the district court to apply the
correct legal standard and correct its error of fact. We also find that the district court
erred in dismissing the case against the Board of Healing Arts for lack of standing. We
reverse that finding and reinstate the action against the Board.
We pause to note that the present action regarding the constitutionality of the
statute remains pending in the Shawnee County District Court. Here, the case before us
relates only to the issuance of a temporary injunction. But as part of the "procedural
backwater" described by the district court in this case, another action challenging the
same statute was decided by a different judge in Shawnee County on January 20, 2022.
That case, in which a temporary injunction had been in place by agreement of the parties
for 10 years, resulted in a finding that K.S.A. 65-4a10 was unconstitutional to the extent
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it banned telemedicine medication abortions. A notice of appeal has been filed in that
case.
FACTUAL AND PROCEDURAL HISTORY
This case involves the cessation of a pregnancy in the first 10 weeks through a
process known as a medication abortion. Medication abortions are administered by oral
consumption of two different medications, one in a medical office and one at home—
where the abortion is completed. The patient must schedule a follow-up appointment in
the clinic 14-21 days after the medication abortion is complete. At the follow-up
appointment the patient is given a pregnancy test and a physician has an opportunity to
evaluate the patient.
Since 2011, state law has provided that "[w]hen RU-486 (mifepristone) 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." K.S.A. 2011 Supp. 65-4a10(a). Violation
of the law constitutes unprofessional conduct under the Kansas Healing Arts Act. K.S.A.
65-4a10(d). This law prevents medication abortions from being accomplished through
telemedicine—a common method of medical patient interaction for a virtually limitless
list of medical appointments and procedures.
A group of gynecologists challenged the law as unconstitutional a few months
after its passage. Hodes v. Moser, No. 2011-CV-1298 (Hodes 2011). The district court
entered a temporary restraining order preventing enforcement of the law until a hearing
could be held. Soon thereafter, the parties—the gynecologists, the Secretary of the
Kansas Department of Health and Environment, the Attorney General, and the Johnson
County District Attorney—entered an agreement (Agreed Order), manifested by an order
of the district court, agreeing that the defendants would not seek to enforce the statute or
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accompanying regulations pending the district court's final judgment. Such an agreement
was well within the authority of the Attorney General.
That case remains pending over 10 years later, with little effort to move it to
judgment by any party until recently. In January 2022, K.S.A. 65-4a10 was declared
unconstitutional by the Shawnee County District Court. The State has filed a notice of
appeal. Based on the Agreed Order, abortion providers were able to provide medication
abortions by telemedicine unrestricted—with no fear of enforcement—from the date of
the Agreed Order to today. The evidence in the current case was that no enforcement
action has been taken by the Attorney General, any district or county attorney, the Kansas
Department of Health and Environment, or the Board of Healing Arts for the last 10 years
against any Kansas abortion provider for providing medication abortion via telemedicine.
The Legislature adopts the Telemedicine Act, effective January 1, 2019.
With Hodes 2011 still pending in the district court, the Legislature enacted the
Telemedicine Act which became effective on January 1, 2019. L. 2018, ch. 98, § 1; see
K.S.A. 2020 Supp. 40-2,210 et seq. The Act addressed health insurance coverage and
information privacy standards for telemedicine care. Section 6 of the Act contained the
sole reference to abortion, providing: "Nothing in the Kansas telemedicine act shall be
construed to authorize the delivery of any abortion procedure via telemedicine." L. 2018,
ch. 98, § 6; see K.S.A. 2020 Supp. 40-2,215.
Trust Women files a lawsuit to enjoin enforcement of the Telemedicine Act as
unconstitutional.
Trust Women provides reproductive healthcare, including abortion, HIV/AIDS
treatment, transgender care, and family planning services. At the time of the motion
hearing, it operated clinics in Wichita, Oklahoma City, and Seattle. It opened its Wichita
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clinic in April 2013. It has provided medication abortions at its Wichita clinic since 2013.
Trust Women began providing medication abortions via telemedicine in October 2018,
after the passage of the Telemedicine Act but before it went into effect.
Trust Women filed a lawsuit in November 2018 against Kansas Attorney General
Derek Schmidt, No. 2018-CV-844 (Trust Women I). It alleged that Section 6 of the
Telemedicine Act was an unconstitutional infringement on abortion access. Trust Women
sought a temporary injunction and a temporary restraining order preventing enforcement
of Section 6 of the Act, which was scheduled to go into effect January 1, 2019.
The district court dismissed the case on December 31, 2018, ruling that nothing in
the Telemedicine Act "contain[ed] an independent prohibition on the provision of
abortion through the use of medications nor by telemedicine." In other words, the Act
neither allowed medication abortions via telemedicine, nor prohibited them.
The district court also noted the symbiotic relationship between the Telemedicine
Act and K.S.A. 65-4a10—which does ban telemedicine medication abortions. The court
found that even if the Telemedicine Act could be interpreted as a ban on telemedicine
medication abortions, the Agreed Order entered in Hodes 2011 enjoined Schmidt, as
Kansas Attorney General, from enforcing it. This was true even though Trust Women
was not a party to Hodes 2011 because Trust Women was "entitled to enjoy that umbrella
of protection and safe harbor provided by the Agreed Order."
Explaining this broad interpretation of the Agreed Order in Hodes 2011, the
district court noted that the attorney general is the chief law enforcement officer of the
state. See K.S.A. 75-702 ("The attorney general shall appear for the state, and prosecute
and defend any and all actions and proceedings, civil or criminal, in the Kansas supreme
court, the Kansas court of appeals and in all federal courts, in which the state shall be
interested or a party, and shall, when so appearing, control the state's prosecution or
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defense."); K.S.A. 75-764 (requiring that the attorney general be given notice and an
opportunity to intervene any time a statute is challenged as unconstitutional); Supreme
Court Rule 11.01 (2022 Kan. S. Ct. R. at 71) (same); see also State v. Finch, 128 Kan.
665, 668-69, 280 P. 910 (1929) ("'[A]s a rule, the attorney-general has power, both under
the common law and by statute, to make any disposition of the state's litigation that he
deems for its best interest; for instance, he may abandon, discontinue, dismiss, or
compromise it.'" [Quoting 2 Thornton on Attorneys at Law, 1160]). So the attorney
general can bind county and district attorneys by his agreements in compromise related to
the enforcement of state statutes.
The district court went on to note that a violation of K.S.A. 65-4a10 is designated
unprofessional conduct as defined by the Kansas Healing Arts Act, K.S.A. 65-2801 et
seq. Under the act, it is also a criminal misdemeanor, the prosecution of which is
controlled by the attorney general. K.S.A. 65-2862. The district court concluded that the
Attorney General is ethically bound to comply with the Agreed Order to enjoin
enforcement of K.S.A. 65-4a10 and "any implementing regulations." There is no dispute
that the Attorney General has complied with the Agreed Order since its entry.
Finally, citing K.S.A. 77-201 First, the district court held that amendments to
K.S.A. 65-4a10 adopted in 2015 did not alter the effectiveness of the Agreed Order
because the crux of the case was the in-person physician requirement resulting in a
prohibition of medication abortion via telemedicine. Furthermore, the statute makes it
clear that "[t]he provisions of any statute, so far as they are the same as those of any prior
statute, shall be construed as a continuation of the prior provisions and not as a new
enactment." K.S.A. 77-201 First.
In sum, on December 31, 2018, the district court dismissed Trust Women I without
prejudice for failure to state a claim—the Act did not prohibit telemedicine medication
abortions, so there was nothing to enjoin under the Act and K.S.A. 60-4a10 is presently
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"barred of enforcement" and inoperative to prevent telemedicine medication abortions.
The Attorney General appealed, but the case has been stayed, without briefing, for the
last two years, at the request of the Attorney General.
The Attorney General files a motion in Hodes 2011 to dissolve the injunction issued in
2011.
On January 31, 2019, the Attorney General—along with the other defendants in
Hodes 2011—filed a motion in the still-pending case to clarify or dissolve the injunction
established in the Agreed Order. Presumably, this was done in response to the district
court's findings in Trust Women I that the Agreed Order applied regardless of the 2015
amendment to K.S.A. 65-4a10 and that the Agreed Order applied to entities that were not
a party to it. The defendants argued that they could not have agreed in 2011 to forgo
enforcement of a statute that was amended in 2015. The district court judge, the same
judge who issued the Trust Women I decision, held that it would adhere to its opinion in
Trust Women I, interpreting the Agreed Order, until it heard evidence on the issues. The
defendants appealed. A panel of this court dismissed the appeal for lack of jurisdiction in
February 2021, holding that the district court's order did not grant, continue, modify,
refuse, or dissolve the injunction created by the Agreed Order. Hodes & Nauser v.
Norman, No. 121,046, 2021 WL 520661 (Kan. App. 2021) (unpublished opinion). No
petition for review was filed. So, the Agreed Order remains in effect, the Hodes 2011
case remains pending, and the decision to apply the Agreed Order to Trust Women on
behalf of the defendants here—as determined by the judge in Hodes 2011—still stands.
The present lawsuit is filed by Trust Women challenging the medication-in-person
requirement of K.S.A. 65-4a10 and Sections 6 and 7 of the Telemedicine Act.
After dismissal of its lawsuit challenging the Telemedicine Act, Trust Women
filed the present lawsuit, Trust Women II, on January 29, 2019. It stated that it was
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"bring[ing] claims on behalf of itself and its patients" and that it sought declaratory and
injunctive relief. This time Trust Women challenged the medication-in-person
requirement of K.S.A. 65-4a10 in addition to Sections 6 and 7 of the Telemedicine Act
and included the Kansas Board of Healing Arts and Sedgwick County District Attorney
Marc Bennett as defendants along with the Attorney General. It asserted that the
challenged laws unduly burdened its patients' fundamental right to access abortion and
violated its patients' equal protection rights by treating women seeking abortions
differently than patients seeking other forms of medical care via telemedicine. Trust
Women did not name or include any of its contracted physicians as parties to the lawsuit.
In the petition, Trust Women stated that it recently began providing medication
abortion via telemedicine to expand access to services. Before initiating this program,
Trust Women was only able to provide abortion care two days per week due to physician
availability. Because the physicians did not have to travel to Wichita to perform a
telemedicine medication abortion, Trust Women was able to expand its provision of the
service by offering the service on additional weekdays and Saturdays. Trust Women
stated that it intended to further expand access to abortion care by offering telemedicine
medication abortions in the evenings and in rural locations throughout Kansas. It claimed
the statutes limiting its ability to provide telemedicine medication abortions were
unconstitutional.
Trust Women acknowledged that in Trust Women I, the district court held that
enforcement of K.S.A. 65-4a10 was barred by the Agreed Order entered in Hodes 2011.
However, Bennett and the Board of Healing Arts were not named as defendants in Hodes
2011 or in Trust Women I. And, although the language of the district court's opinion in
Trust Women I seemed clear—the Attorney General was barred from enforcing K.S.A.
65-4a10 and "any implementing regulations" and noting that a finding of unprofessional
conduct by the Board of Healing Arts under K.S.A. 65-4a10 could result in criminal
prosecution—Trust Women wanted assurances. Adding to its concern, in December
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2018, Kansans for Life announced that it filed a complaint with the Board of Healing
Arts asking it to investigate Trust Women's alleged provision of "'illegal'" telemedicine
medication abortions. This prompted Trust Women to seek confirmation from Bennett
and the Board that they would not attempt to enforce K.S.A. 65-4a10 or Section 6 of the
Act. The defendants failed to provide Trust Women with written assurance that they
would not enforce the challenged laws. Instead, the Attorney General immediately
appealed the decision in Trust Women I regarding the application of the Agreed Order
and also filed an action in Hodes 2011 seeking to dissolve the now 10-year-old
injunction.
In March 2019, Trust Women filed a motion for temporary injunction and a
temporary restraining order enjoining the defendants from enforcing K.S.A. 65-4a10 and
Sections 6 and 7 of the Telemedicine Act. The district court scheduled a hearing on the
matter.
The hearing was held, and several facts were uncontested.
Trust Women called three witnesses at the hearing. The defendants did not present
any witnesses but did establish some facts through cross-examination. The uncontested
evidence presented at the hearing, pertinent to this case, was as follows.
1. Trust Women's Wichita clinic is licensed by the Kansas Department of Health and
Environment as an ambulatory surgery center. The physicians who practice at
Trust Women are licensed by the Board of Healing Arts, but Trust Women and its
patients are not. The physicians are all independent contractors.
2. Telemedicine is used throughout the United States in practically every area of
medicine—including obstetrics and gynecology—to facilitate consultations,
diagnose conditions, prescribe medications, and monitor and treat chronic illness.
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It has been used to provide medication abortion in the United States since at least
2008 and is currently being provided in Iowa, Alaska, Washington, Idaho, Nevada,
Illinois, Maine, New York, Hawaii, and Oregon.
3. The Kansas Legislature has singled out one service for which telemedicine is
prohibited: medication abortion. K.S.A. 65-4a10. However, for the last 10 years
the Attorney General has elected not to enforce this exception.
4. Childbirth is much riskier than abortion. Similarly, the risks associated with
erectile dysfunction medication like Viagra, antibiotics like penicillin, and over-
the-counter drugs like Tylenol are higher than the risks associated with medication
abortions. If complications do arise in a medication abortion, they occur after the
patient leaves the facility, generally after she takes the second medication. While
abortion is a safe and effective procedure with few serious complications, the risks
of abortion increase as a pregnancy progresses.
5. Trust Women has been providing medication abortion since 2013. It began
utilizing telemedicine to provide medication abortions in October 2018. Eighty-
four percent of abortions performed at Trust Women in Wichita are first trimester
abortions. And 60%-70% of those are medication abortions.
6. A patient is only eligible for a medication abortion for the first 10 weeks of a
pregnancy, measured from the date of the last menstrual period. Medication
abortions are around 95%-96% effective depending on the gestational age.
7. The procedures for medication abortions provided in-person and via telemedicine
are largely the same. For both procedures, patients go to the clinic in Wichita,
check in, fill out paperwork, and have lab work completed. After that, the patient
is taken into an exam room where a medical staff member conducts an ultrasound.
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For in-person medication abortions, the physician performs the ultrasound. For
telemedicine procedures, the physician observes an ultrasound technician perform
the ultrasound on a videoconferencing platform and reviews the results remotely.
In either scenario, the physician can speak directly to the patient, view the patient's
medical records, and answer any questions. Next, the physician confirms that the
patient is eligible for the medication abortion.
8. Once the physician confirms that the patient wishes to proceed with a medication
abortion, the patient is given the first of the two drugs—mifepristone. In a
telemedicine appointment, the physician directs a medical staff member to give the
mifepristone to the patient and this is visible to the physician. In an in-person
appointment, the physician hands the mifepristone to the patient. The patient is
provided the second drug—misoprostol—along with instructions on how to use it
at home. The actual expelling of the pregnancy does not happen until the
misoprostol is taken at home.
9. The patient must schedule a follow-up appointment in the Wichita clinic 14-21
days after the medication abortion, irrespective of whether the first appointment is
via telemedicine or in person. At the follow-up appointment the patient is given a
pregnancy test and a physician has an opportunity to evaluate the patient in person.
10. There is no statistically significant difference in patient safety between an in-
person medication abortion or a telemedicine medication abortion. They are
equally safe. Accordingly, there is no medical justification to require a physician
to physically be in the same room with the patient when mifepristone is
administered. In fact, the Federal Drug Administration no longer requires that
mifepristone be administered in a clinic, medical office, or hospital, and it does not
require that someone observe the ingestion of mifepristone.
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11. Trust Women's Wichita clinic generally operates Monday through Friday from 8
a.m. to 5 p.m. In-person abortion services are only provided on Thursday and
Friday, this is because it must schedule appointments around the availability of the
two doctors with which it contracts. Finding physicians to work for Trust Women
has been a consistent and chronic problem. It could perform more abortions if it
could hire more physicians.
12. When Trust Women began offering telemedicine abortions in October 2018, they
were able to expand the available times for medication abortions by 8-12 hours per
week. They were able to offer the service on Saturdays, other weekdays, and
outside of their standard business hours. While patients still had to report to the
clinic, they had a much shorter wait time, usually one-and-a-half to two hours.
This is because when there were only two days a week of physician availability
the schedule was packed.
13. Fifty percent of Trust Women's patients live outside of Wichita.
14. The availability of telemedicine medication abortions helps patients access their
preferred method of abortion because for some patients, if they were to wait for
the next appointment that may be available at a site where they would see a
physician in-person, they would be past the 10-week eligibility window for
medication abortions, pushing them into a surgical abortion.
15. Trust Women's telemedicine medication abortion program lowered barriers to
obtaining abortion by providing patients with scheduling flexibility, even if the
patient still had to travel to Wichita. It also allowed the clinic to see women more
quickly which reduced delays to care. This was important because the earlier an
abortion can be completed the safer it is.
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16. Trust Women stopped providing medication abortions through telemedicine on
December 31, 2018.
17. Doctors will not perform medication abortions via telemedicine if it means they
could lose their license.
18. One complaint was filed with the Board of Healing Arts against a physician for
conducting a telemedicine medication abortion.
19. Trust Women wants to expand access to medication abortions through
telemedicine into more remote or rural locations in Kansas. However, it has not
taken any concrete steps to expand its telemedicine program like hiring a real
estate agent, reviewing real estate listings, or visiting potential sites for a new
clinic. It did not actively pursue expansion because it did not view such an option
as viable given existing laws.
The district court denies the requested relief.
The district court ultimately denied Trust Women's request for a temporary
injunction.
First, it held, as did the judge in Trust Women I, that Sections 6 and 7 of the
Telemedicine Act do not limit or prohibit medical abortion offered via telemedicine.
Trust Women does not challenge this ruling on appeal. And the defendants do not cross-
appeal this ruling.
Second, it held that Trust Women lacks standing to pursue any constitutional
claims against the Board of Healing Arts because the Board has no enforcement authority
over Trust Women or its patients. Further, while Trust Women's contracting physicians
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may face discipline from the Board for performing telemedicine abortions, no physicians
were a party to the lawsuit. The district court also found, sua sponte, that Trust Women
did not have third-party standing on behalf of its independent contractor physicians
because it had "offered no proof . . . of any hindrance to the physicians' ability to protect
their own interests." Regardless, Trust Women never asserted third-party standing on
behalf of physicians nor do they in this appeal.
Finally, the district court denied Trust Women's request for a temporary injunction
against District Attorney Bennett and Attorney General Schmidt. For the purposes of its
ruling, the district court assumed that there was a substantial likelihood Trust Women
would prevail on the merits. However, it held that Trust Women failed to prove it would
suffer irreparable injury if the temporary injunction was not granted.
Trust Women appealed.
ANALYSIS
On appeal, Trust Women challenges the district court's refusal to grant a
temporary injunction that would prohibit the defendants from enforcing K.S.A. 65-4a10.
It also challenges the dismissal of the action against the Board of Healing Arts.
I. THE DISTRICT COURT ABUSED ITS DISCRETION IN DENYING TRUST WOMEN'S
REQUEST FOR A TEMPORARY INJUNCTION.
Trust Women first asks this court to reverse the district court's denial of its motion
for a temporary injunction that would preclude the Attorney General and the Sedgwick
County District Attorney from enforcing the telemedicine abortion prohibition in K.S.A.
65-4a10.
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Appellate courts review a district court's decision on a motion for temporary
injunction for abuse of discretion. The district court abuses its discretion if its decision is
(1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an
error of fact. Hodes & Nauser, MDs v. Schmidt, 309 Kan. 610, 619, 440 P.3d 461 (2019).
In Kansas, a party seeking a temporary injunction must show: (1) a substantial
likelihood of eventually prevailing on the merits; (2) a reasonable probability that the
plaintiff will suffer irreparable injury without an injunction; (3) lack of an adequate legal
remedy, such as damages; (4) the threat of injury to the plaintiff outweighs whatever
harm the injunction may cause the opposing party; and (5) the injunction will not be
against the public interest. 309 Kan. at 619. A temporary injunction does not determine
the merits of an issue, but merely preserves the relative positions of the parties until a full
decision on the merits can be made. Steffes v. City of Lawrence, 284 Kan. 380, 394, 160
P.3d 843 (2007).
Here, the district court first noted that section 1 of the Kansas Constitution
provides a fundamental right to an abortion, a right that is to be guarded against any law
that may impair it. The district court went on to assume for purposes of the action before
it that Trust Women established a substantial likelihood of eventually prevailing on the
merits of its constitutional challenge to K.S.A. 65-4a10. We pause to note that this
finding has since been reinforced by a finding in the Hodes 2011 case, effective January
20, 2022, that K.S.A. 65-4a10 is unconstitutional and unenforceable. The State has filed a
notice of appeal in that case, but as of this writing it has not been docketed.
The district court also correctly recognized that courts presume that irreparable
injury results when a constitutional right is violated. But next, it diverged from well-
established Kansas caselaw. It held that it could deny the request for a temporary
injunction because Trust Women failed to establish irreparable injury. Then it bolstered
this conclusion by finding that Trust Women did not diligently pursue an injunction,
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undermining any claim of irreparable injury. Both these findings resulted in an abuse of
discretion, the first being an error of law and the second being an error of fact.
The Kansas Supreme Court has made it clear that a party seeking a temporary
injunction need only show that "'there is a reasonable probability of irreparable future
injury.'" Board of Leavenworth County Comm'rs v. Whitson, 281 Kan. 678, 683, 132 P.3d
920 (2006). In doing so, the Supreme Court expressly rejected any standard that is more
exacting than "'reasonable probability.'" 281 Kan. at 684. A plaintiff need only show that
there is a reasonable probability of irreparable injury, and "demand[ing] proof of the
certainty of irreparable harm rather than the mere probability of it have set too high a
standard for parties seeking injunctions." 281 Kan. at 684. Here, it is clear that the district
court required the more exacting standard.
If it was not clear enough in Whitson, the Kansas Supreme Court reinforced its
position in Steffes, 284 Kan. 380. Again, it stated that there is no requirement that a
plaintiff establish that it will suffer irreparable injury, only that injury is reasonably
probable. Citing Whitson, it reiterated that requiring certainty places too high of a burden
on the moving party. 284 Kan. at 395. Contrary to this clear language, the district court
found that Trust Women "has failed to demonstrate here that it or its patients will suffer
irreparable injury in the absence of a temporary injunction for the period of time between
now and a decision on the merits." (Emphasis added.) This is clearly the wrong legal
standard. Trust Women did present evidence regarding the reasonable probability of harm
related to delays in appointments forcing a patient into riskier surgical abortion
procedures, length of appointments—again requiring delays if a patient could not be
away from home or work that long—and cancelations due to the inability of physicians to
travel. Other courts that have considered the issue have concluded that an in-person
requirement results in harm and unreasonably limits a woman's access to legal abortion.
Planned Parenthood of the Heartland, Inc. v. Iowa Bd. of Medicine, 865 N.W.2d 252,
268 (Iowa 2015) (noting the harm that results from an in-person physician requirement
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that unreasonably limits a woman's access to legal abortion services); Whole Woman's
Health Alliance v. Rokita, 553 F. Supp. 3d 500, 577-78 (S.D. Ind. 2021) (same), appeal
filed August 12, 2021.
The district court also attempted to bolster its conclusion that there was no harm
by holding that Trust Women's "lack of diligence in seeking an injunction undermines the
notion that an injury is irreparable." Kansas courts have long held that "[c]ourts of equity
require that persons shall themselves exercise reasonable diligence in the protection of
their rights, and that they shall not depend slothfully upon the action of courts of equity."
Noble v. Butler, 25 Kan. 645, 651 (1881); see also 11A Wright & Miller, Federal Practice
and Procedure: Civil § 2948.1 (2013) ("A long delay by plaintiff after learning of the
threatened harm also may be taken as an indication that the harm would not be serious
enough to justify a preliminary injunction.").
In ruling, the district court reasoned that a ban on telemedicine medication
abortion has been in effect since the adoption of K.S.A. 65-4a10, in 2011. Trust Women
started providing abortion services in Kansas in 2013, but didn't challenge the statute
until January 2019, resulting in "a significant delay." The district court noted that Trust
Women claimed there was no need to challenge the law until the Telemedicine Act went
into effect. However, the district court had already found that the Telemedicine Act did
not constitute a ban on telemedicine medication abortion. According to the district court's
reasoning, the delay was compelling evidence that Trust Women had not suffered any
irreparable harm.
A review of the record reveals additional facts that add context and justification to
Trust Women's decision to bring the present lawsuit in January 2019. First, Trust Women
asserts that it believed the Hodes 2011 Agreed Order enjoined enforcement of K.S.A. 65-
4a10 since December 2011. Thus, it had no reason to challenge the law when it opened
its Wichita clinic in 2013. Trust Women did think that the Telemedicine Act, enacted in
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July 2018 and effective on January 1, 2019, would prohibit the practice of providing
medication abortions using telemedicine. But it acted diligently by bringing the Trust
Women I lawsuit in November 2018 and seeking pre-enforcement relief. Thus, when
Trust Women initiated its telemedicine medication abortion program in October 2018, it
thought that K.S.A. 65-4a10 could not be enforced against it and it was planning to only
challenge the Telemedicine Act.
Trust Women asserts that it learned for the first time during the Trust Women I
litigation of a threat that K.S.A. 65-4a10 may be enforced against it despite the Hodes
2011 Agreed Order. It states that "in a brief filed in Trust Women I on December 3, 2018,
the Attorney General for the first time made the extraordinary argument that K.S.A. 65-
4a10 could be enforced by himself as well as the Sedgwick County District Attorney and
the Board of Healing Arts, despite the Hodes 2011 agreed order." When the district court
issued its decision in Trust Women I on December 31, 2018, it did not specify who was
enjoined from enforcing K.S.A. 65-4a10. It simply ruled that K.S.A. 65-4a10 was
"presently barred of enforcement by an Agreed Order of the Court in [Hodes 2011]."
Attorney General Schmidt was the only defendant named in Trust Women I. Trust
Women ceased its telemedicine medication abortion program the day the district court
issued its decision in Trust Women I. Trust Women then sought written assurance from
the Board of Healing Arts and the Sedgwick County District Attorney that they would not
seek to enforce either K.S.A. 65-4a10 or the Telemedicine Act against Trust Women.
Within a month of the Trust Women I decision and having received no written assurances
from the Board of Healing Arts or the Sedgwick County District Attorney, Trust Women
filed the present action.
The facts offered by Trust Women on this point show that it did not delay in
bringing suit. Trust Women believed it was protected by the Hodes 2011 Agreed Order,
otherwise it would not have initiated the telemedicine abortion program in October 2018.
Trust Women first discovered the threat of enforcement in December 2018 and filed the
18
present action less than two months later. Omitting these facts from its analysis led the
district court to place undue weight on the apparent delay between the enactment of
K.S.A. 65-4a10 and the initiation of the present lawsuit. This led the court to an arbitrary
decision, based on incomplete facts, and that decision constitutes an abuse of discretion.
Finally, in a footnote the district court judge acknowledged the decision of her
colleague enjoining enforcement of K.S.A. 65-4a10 against the defendants in Trust
Women I. Even though accepting that decision would have been decisive, the district
judge made it clear that she was not expressing an opinion on the enforceability of the
Agreed Order against the defendants here. Failure to consider the impact of the Agreed
Order as interpreted by the same judge that granted the injunction barring enforcement of
K.S.A. 65-4a10 and while Hodes 2011 remained pending was arbitrary and unreasonable.
The sole basis for the district court's denial of a temporary injunction in this case
was Trust Women's failure to show it will suffer irreparable injury. That was an error of
law. Basing that decision in part on Trust Women's perceived delay in bringing this
action was an error of fact. And finally, failing to consider the import of the Agreed
Order was arbitrary and unreasonable. Accordingly, the district court's decision denying a
temporary injunction constituted an abuse of discretion. We reverse the denial of the
requested relief and remand the case to the district court to apply the proper legal
standard, correct its error of fact, and consider the impact of the Agreed Order.
II. THE DISTRICT COURT ERRED WHEN IT DETERMINED THAT TRUST WOMEN DID
NOT HAVE STANDING TO SUE THE BOARD OF HEALING ARTS.
Trust Women also appeals the district court's decision that it lacks standing to
bring claims against the Board of Healing Arts.
19
Issues of standing present questions of law over which this court exercises
unlimited review. Kansas Bldg. Industry Workers Comp. Fund v. State, 302 Kan. 656,
676, 359 P.3d 33 (2015).
"Kansas' standing requirement is grounded in the separation of powers doctrine
which is implicit in our State Constitution." 302 Kan. at 678. Under Kansas' traditional
standing test, a person must demonstrate (1) he or she suffered a cognizable injury; and
(2) a causal connection between the injury and the challenged conduct. 302 Kan. at 678.
The burden of establishing the elements of standing rests with the party asserting it.
Gannon v. State, 298 Kan. 1107, 1123, 319 P.3d 1196 (2014). Each element of standing
"must be proved in the same way as any other matter and with the degree of evidence
required at the successive stages of the litigation." 298 Kan. at 1123. In accordance with
this rule, the district court required Trust Women to establish standing by a
preponderance of the evidence.
A. Trust Women established a cognizable injury.
The first element of standing is cognizable injury. The injury must be
particularized, meaning it affects the plaintiff in a personal and individual way. It cannot
be a mere generalized grievance that is a general interest common to all members of the
public. An injury can be actual or threatened. 298 Kan. at 1123.
Trust Women asked the court to enjoin the Board of Healing Arts from enforcing
K.S.A. 65-4a10. The statute contains a provision that says the violation of the statute
constitutes unprofessional conduct as defined by the Kansas Healing Arts Act. K.S.A. 65-
4a10(d). The Board is responsible for enforcing the Kansas Healing Arts Act, and thus
making findings of unprofessional conduct. See K.S.A. 65-2864. If a Board licensee
commits an act of unprofessional conduct, the "licensee's license may be revoked,
suspended or limited, or the licensee may be publicly censured or placed under
20
probationary conditions." K.S.A. 2020 Supp. 65-2836. In addition, violation could result
in prosecution for a misdemeanor offense. K.S.A. 65-2862. Trust Women is licensed by
the Kansas Department of Health and Environment. While Trust Women is not licensed
by the Board of Healing Arts, the physicians who practice at Trust Women are. Only
physicians licensed by the Board of Healing Arts may perform abortions in Kansas.
K.S.A. 65-4a10(a).
Trust Women asserts that K.S.A. 65-4a10 causes both it and its patients to suffer a
cognizable injury because of "the very real threat that it could lose a physician if that
physician violates K.S.A. 65-4a10 and has his or her license suspended or revoked."
Losing a physician would reduce access to and delay medication abortion. It is not at all
unreasonable to assume that Trust Women would not be able to hire any Kansas licensed
physicians to perform telemedicine medication abortions if the licensing authority in the
state found such conduct to be unprofessional and took action against their license. This
injury would continue until a ruling by the court on the constitutionality of K.S.A. 65-
4a10—a result the district court assumed would be favorable to Trust Women.
The district court held that Trust Women failed to establish cognizable injury for
standing purposes. In ruling, the district court highlighted the fact that neither Trust
Women nor its patients are licensed by the Board of Healing Arts, and thus the Board has
no enforcement authority over Trust Women. The district court did consider Trust
Women's argument that it suffers injury because its contracting physicians face discipline
from the Board for providing telemedicine abortions in violation of K.S.A. 65-4a10. But
in an exercise in circular reasoning, it rejected the contention that this injures Trust
Women or its patients because "no physician is a party to this lawsuit."
But we find that a physician does not need to be a party to the lawsuit for Trust
Women to have standing to sue the Board. All that is necessary is that the Board has the
authority to enforce the challenged statute. Bronson v. Swensen, 500 F.3d 1099, 1110
21
(10th Cir. 2007) ("It is well-established that when a plaintiff brings a pre-enforcement
challenge to the constitutionality of a particular statutory provision, the causation element
of standing requires the named defendants to possess authority to enforce the
complained-of provision.").
If Trust Women does not have physicians because the Board suspends or revokes
the physicians' licenses for engaging in telemedicine medication abortions as prohibited
by K.S.A. 65-4a10, then Trust Women cannot offer telemedicine medication abortion
services. As discussed above, this particularly harms Trust Women and its patients by
reducing access to and delaying abortions. Such an infringement on the constitutional
right to obtain an abortion is particular to abortion providers and their patients—it is not
an injury that is common to all members of the public. See Gannon, 298 Kan. at 1123.
Moreover, it is not necessary that the Board actually initiate disciplinary
proceedings against one of Trust Women's physicians for Trust Women to demonstrate
cognizable injury—the threat of enforcement is enough. The Board's ability to initiate
disciplinary proceedings against a physician for unprofessional conduct, specifically the
conduct proscribed by K.S.A. 65-4a10, is likely to have a deterrent effect on doctors
wishing to perform telemedicine medication abortions. Dr. Colleen McNicholas, the
medical director of Trust Women, testified that one of the reasons Trust Women ended its
telemedicine medication abortion program was because she did not feel it was
appropriate to ask physicians to risk their licenses. Further, she did not think that
physicians would be willing to provide the service if they were at risk of losing their
license. Such a conclusion is reasonable.
And more importantly, even though, at the time of the hearing, the Board had
never taken any action against any licensee for violating K.S.A. 65-4a10, the Board
refused to provide assurances to Trust Women before it filed its lawsuit that the Board
would not do so while the Agreed Order was in place. In fact, it appeared to question
22
whether the Agreed Order applied to it. The Board also confirmed that a complaint had
been filed against a physician working for Trust Women for providing a telemedicine
medication abortion, although it could not reveal who or the results of the complaint.
Counsel for the Board stated at the hearing, "[b]ut what's undisputed is okay, let's take it
as a matter of fact that whatever they allege in regard to a complaint and investigation
being opened is true." Accordingly, Trust Women established that the risk of
enforcement and the resultant injury to it in the provision of abortion services is credible,
not imaginary or speculative.
B. Trust Women established a causal connection between the injury and the
challenged conduct.
The second part of the standing analysis requires there to be a causal connection
between the injury and challenged conduct. In other words, "'the injury must be fairly
traceable to the opposing party's challenged action.' [Citation omitted.]" Gannon, 298
Kan. at 1123. In this case, the causal connection is clear and addressed under the first
factor as well. The challenged conduct that Trust Women seeks to enjoin is Board action
based on K.S.A. 65-4a10(d) against physicians who provide telemedicine medication
abortions. This conduct would cause the injury asserted by Trust Women: loss of
physicians who could provide such abortions.
The district court ruled against Trust Women for two reasons.
First, the court relied on the fact that Trust Women is not licensed by the Board.
However, Kansas courts do not require a direct relationship between a plaintiff and
defendant with respect to the conduct at issue. "[T]he fairly traceable standard
encompasses injury that flows indirectly from the challenged conduct." Kansas Bldg.
Industry Workers Comp. Fund, 302 Kan. at 682. This standard does not set a very high
bar. The Kansas Supreme Court has rejected the proposition that the defendant's actions
23
must be "'the very last step in the chain of causation.' [Citation omitted.]" 302 Kan. at
682. Standing can rest on the injuries produced by the statute's "coercive effect upon the
action of someone else." Bennett v. Spear, 520 U.S. 154, 169, 117 S. Ct. 1154, 137 L. Ed.
2d 281 (1997). Accordingly, this was not a basis for denying standing to Trust Women.
The district court also held that the timing of Trust Women's telemedicine pilot
project "undermine[d] the existence of a causal connection between the challenged laws
and any alleged injury to Plaintiff." Essentially, the district court held that "K.S.A. 65-
4a10 was not a barrier to Plaintiff performing telemedicine abortions" because Trust
Women did in fact perform such abortions between October and December of 2018. The
district court relied on its finding that Trust Women only stopped performing
telemedicine abortions because of the passage of the Telemedicine Act.
This finding by the district court is problematic for reasons already outlined in this
opinion.
First, the finding that Trust Women only stopped providing telemedicine
medication abortions because of the Telemedicine Act is simply not supported by the
evidence before the district court. The evidence indicated several factors that converged
between November 2018 when it filed Trust Women I and the December 31, 2018 ruling
finding that Trust Women was "entitled to enjoy that umbrella of protection and safe
harbor provided by the Agreed Order."
Although Trust Women I was dismissed for failure to state a claim, it was a win
for Trust Women because it found that the Telemedicine Act would not be an
impediment to medication abortions via telemedicine. Presumably, Trust Women would
not have had to cease telemedicine abortions on December 31, 2018, if their sole concern
remained the Telemedicine Act. But this victory was short-lived because a new threat
was looming.
24
For the first time in seven years and after Trust Women filed its first challenge to
the Telemedicine Act, the Attorney General took the position that the Agreed Order did
not preclude him from enforcing K.S.A. 65-4a10. Again, until that point, Trust Women
would not have had a claim under K.S.A. 65-4a10—because enforcement had been
voluntarily suspended for the preceding seven years. In fact, it was the Attorney General,
in Trust Women I, who threw down the gauntlet arguing that the Agreed Order did not
prevent him or others—for example the Board of Healing Arts or the Sedgwick County
District Attorney—from enforcing K.S.A. 65-4a10. Apparently in direct response to this
argument, the district court pointed out that the Attorney General was the chief law
enforcement officer in the state and was ethically bound to comply with the Agreed Order
on behalf of the State, as well as pointing out that a finding of "'unprofessional conduct'"
by the Board would implicate criminal sanctions enforceable by the Attorney General.
The Attorney General continued to push this position by appealing Trust Women I
based on the language regarding the Agreed Order and by filing a motion in Hodes 2011
to dissolve the Agreed Order. Based on the Attorney General's position in Trust Women I
that the Agreed Order did not bind the Board of Healing Arts or the Sedgwick County
District Attorney, Trust Women tried to get assurances that the Sedgwick County District
Attorney and the Board of Healing Arts would recognize and comply with the Agreed
Order until a decision was reached in Hodes 2011. Although the decision in Trust Women
I appeared to hold that the Agreed Order applied to the Attorney General for any claims
and the enforcement of any regulations related to K.S.A. 65-4a10, which would include
unprofessional conduct proceedings based thereon, Trust Women indicated it did not
want to do anything that would place the licensure of their physicians in jeopardy.
The CEO for Trust Women stated that she was "fearful that the clinic and our
physicians could be penalized for providing telemedicine medication abortions." She
testified that if weren't for this fear, Trust Women would still be providing telemedicine
medication abortions. Dr. McNicholas testified there were "a number of reasons" Trust
25
Women ended its telemedicine program. Specifically, she did not want "to ask physicians
to potentially put their medical license on the line when we were unclear about the impact
of the current legal situation." There was no evidence that the Telemedicine Act was the
sole reason Trust Women filed the present suit. Its inclusion of K.S.A. 65-4a10 in its
request for an injunction demonstrates that it had new concerns about enforcement. And
those concerns would prove to be well-founded.
Before the current lawsuit was filed, in December 2018, a complaint was filed
with the Board against one of its physicians. So the chilling effect was no longer
speculative, and the Board would not assure Trust Women that it would not take any
enforcement action based on K.S.A. 65-4a10. Justifiably Trust Women returned to the
court system to resolve this dispute. It stopped performing medication abortions via
telemedicine but sought the temporary injunction so it could offer the telemedicine
procedure while the case was pending.
Contrary to the district court's holding, the timing of Trust Women's telemedicine
pilot did not undermine the existence of standing, it reinforced it. Trust Women
discovered the threat of an injury that could be caused by the Board (enforcement of
K.S.A. 65-4a10) in December 2018. Trust Women ceased its telemedicine program when
it failed to get assurances from the Board.
Second, just because K.S.A. 65-4a10 was not enforced by the Board in the past
does not mean it could not be enforced in the future. The district court cited nothing that
would prevent the Board from taking action against the licenses of Trust Women's
physicians, even though it assumed the challenge to the constitutionality of the statute
would be successful. The district court specifically declined to address the application of
the Agreed Order—which did refer to actions by the Board of Healing Arts. As discussed
above, the Board's enforcement of an unconstitutional law would injure Trust Women
26
and its patients by denying them the medical professionals necessary to complete
abortion procedures.
Trust Women established a cognizable injury and a causal connection between the
injury and the Board of Healing Arts. For these reasons, the district court erred in holding
that Trust Women did not have standing to sue the Board.
Reversed and remanded with directions.
***
SCHROEDER, J., dissenting: I respectfully dissent from the majority's finding that
the district court abused its discretion in denying Trust Women's request for a temporary
injunction. Trust Women failed to show with reasonable probability it will suffer
irreparable injury without an injunction because any injury is far too speculative. Trust
Women also lacked standing to sue the Board of Healing Arts as it failed to establish a
cognizable injury and a causal connection between the injury and the challenged conduct.
Temporary injunction
Trust Women cannot support its claim that it faces a "very real threat" absent an
injunction. "Mere apprehension or possibility of wrong or injury ordinarily does not
establish a reasonable probability of future injury that will justify injunctive relief.
[Citation omitted.]" Sampel v. Balbernie, 20 Kan. App. 2d 527, 531, 889 P.2d 804(1995). Trust Women suggests the district court imposed a heightened burden by
requiring a show of certainty Trust Women will suffer irreparable harm rather than
showing a reasonable probability of irreparable harm. The district court's opinion, read as
a whole, indicates the district court applied the correct standard. The district court
ultimately held that Trust Women failed to meet the "reasonable probability" standard
27
because its evidence of harm was too speculative, and the evidence failed to show the
challenged laws decreased access to abortion.
Trust Women asserts: "Having assumed the existence of constitutional violations,
the district court should have concluded that those violations constitute irreparable future
injury as a matter of law." However, constitutional violations only lead to a presumption
that irreparable injury has occurred—there is no bright-line rule that mandates this
finding. It is possible that a constitutional violation could give rise to an injury that is
compensable "through recovery of calculable money damages," in which case "the injury
is not irreparable harm justifying injunctive relief." Persimmon Hill First Homes Ass'n v.
Lonsdale, 31 Kan. App. 2d 889, 894, 75 P.3d 278 (2003). It is also possible that a
plaintiff will fail to carry its burden in showing that a future injury is more than
speculative. See Mid-America Pipeline Co. v. Wietharn, 246 Kan. 238, 242, 787 P.2d 716(1990) ("Mere apprehension or possibility of wrong or injury ordinarily does not warrant
the granting of an injunction. [Citations omitted.]"). Trust Women's claim of harm was
highly speculative and conclusory. Regardless of statutory requirements under K.S.A. 65-
4a10 for telemedicine abortion, patients are still required to travel to the Wichita clinic
for both the initial appointment to confirm the pregnancy before taking the medication
and then return in two or three weeks to confirm the pregnancy was terminated.
A reasonable person could agree Trust Women failed to demonstrate a reasonable
probability it, or its patients, would suffer irreparable injury without a preliminary
injunction. Trust Women offered no evidence of any patient unable to obtain a
medication abortion as a result of the ban on telemedicine abortion. In fact, Julie
Burkhart, the founder and CEO of Trust Women, provided testimony establishing several
reasons why a woman may be unable to obtain a medication abortion:
"So we've had patients who have called wanting to come in for an abortion, say that same
week. So one, they might be so close to the gestational limit, that cutoff, that it would
28
force them into a surgical procedure. You know, sometimes if a patient calls and has to
wait that 24-hour period and the doctor is only in a certain amount of time that week, that
can push the patient into a surgical only procedure. So—so there have been cases where
people just haven't been able to access that—their abortion of choice, which would be a
medication abortion."
Notably, none of these issues are directly caused by K.S.A. 65-4a10. Dr. Colleen
McNicholas gave similar testimony, explaining it was hard for her to determine whether
any patients wanted a medication abortion but could not get one because of the physician
in-person requirement. Dr. McNicholas stated: "There definitely are patients that wanted
medication abortion but at the time of their visit were beyond the gestational age. Which,
had they been offered a visit sooner, may not have been above the gestational age limit."
She added that "there are lots of reasons that patients have experienced delays to care and
one of them is because we are only able to offer services on certain days with limited
times." It would appear this could be remedied by Trust Women contracting with more
physicians for other days of the week.
Evidence showed, at best, K.S.A. 65-4a10 may make accessing medication
abortion more inconvenient but did not establish the statutory requirement prevented a
patient from obtaining a medication abortion. A patient's potential increased wait time for
an in-person appointment is a result of Trust Women's lack of physicians or how they
schedule patients, not a consequence of K.S.A. 65-4a10. Burkhart's testimony supported
such proposition when she explained the times when Trust Women provides abortion
care are "dependent upon the physicians coming to the clinic to provide the care," so
Trust Women is "totally at the mercy of the physicians who are able to come to the
facility." The district court considered the evidence and found that "the availability of
telemedicine abortions has as much to do with securing resources to open new clinics and
finding physicians to staff them, whether in person or remotely." Evidence showed the
delay in accessing medication abortions can result from patients not realizing they are
29
pregnant until it is too late, patients not scheduling timely appointments, and the statutory
waiting period. See K.S.A 65-6709(a), (b), and (d).
Mere inconvenience of obtaining a medication abortion does not necessitate a
finding of irreparable injury absent an injunction. Patients are still able to exercise their
constitutional right to have an abortion. In this way, K.S.A. 65-4a10 does not impair a
person's right to get an abortion.
Additionally, the Attorney General entered an agreed order related to Hodes v.
Moser, No. 2011-CV-1298 (Hodes 2011), agreeing the defendants would not seek to
enforce K.S.A. 2011 Supp. 65-4a10, or accompanying regulations, pending the district
court's final judgment. The majority points out it was well within the Attorney General's
authority to enter such agreement, which was manifested by an order of the district court.
Hodes is still pending; thus, the agreement is still in effect today. While the Attorney
General has requested the district court to set aside the district court's injunctive order,
the Attorney General is still bound by that agreement and order.
Standing
One of our first tasks on appeal is to determine if we have jurisdiction. Whether
jurisdiction exists is a question of law over which our scope of review is unlimited. Via
Christi Hospitals Wichita v. Kan-Pak, 310 Kan. 883, 889, 451 P.3d 459 (2019). One
component of jurisdiction is standing. Peterson v. Ferrell, 302 Kan. 99, 102-03, 349 P.3d
1269 (2015). Based on the evidence before the district court, Trust Women lacked
standing to sue the Board of Healing Arts as it failed to establish a cognizable injury and
a causal connection between the injury and the challenged conduct. A cognizable injury
must be actual or threatened and must show a "concrete likelihood of future harm." Baker
v. Hayden, 313 Kan. 667, 680, 490 P.3d 1164 (2021). Standing cannot hinge on a
conjectural injury; it must be "impending" and "probable." Sierra Club v. Moser, 298
30
Kan. 22, 33, 310 P.3d 360 (2013). Trust Women failed to meet this standard because its
evidence of injury was far too speculative. This renders Trust Women's claim of injury
conclusory and unactionable.
Burkhart testified Trust Women ended its telemedicine abortion program because
she was "fearful that the clinic and our physicians could be penalized." But Burkhart
never provided any additional evidence on whether the Board threatened to act against
Trust Women's physicians. Dr. McNicholas did not testify in a capacity in which she
could lose her medical license for performing telemedicine abortions. There also was no
evidence such a threat was real or imminent. While the district court found evidence of a
complaint filed with the Board about Trust Women providing telemedicine abortions,
there was no evidence the Board had opened an investigation into any of Trust Women's
physicians or taken action against their licenses. Further, the Board defendants know
Trust Women's physicians operated in violation of K.S.A. 65-4a10 because they are a
party to this lawsuit, yet there was no evidence the Board investigated or sanctioned any
of Trust Women's independent contracting physicians. It appears those physicians
continue to provide in person abortion services for Trust Women.
The majority reasons Trust Women, while not licensed by the Board, contracts
with physicians who are licensed by the Board to perform abortions in Kansas. Therefore,
both Trust Women and its patients suffer a cognizable injury because of "the very real
threat that it could lose a physician if that physician violates K.S.A. 65-4a10 and has his
or her license suspended or revoked." Slip op. at 21. Losing a physician could potentially
reduce access to and delay medication abortions, but any particularized injury is
attributable to the physicians who are not parties to this suit. The physicians are subject to
discipline by the Board, not Trust Women or its patients. The district court was correct in
noting the Board has no authority over Trust Women because neither Trust Women nor
its patients are licensed by the Board.
31
The absence of Trust Women's physicians in this lawsuit precludes Trust Women
from establishing standing. The Board cannot act directly against Trust Women, and the
physicians providing services for Trust Women are not employees but independent
contractors. In fact, Trust Women consistently refers to the physicians as independent
contractors rather than employees.
There appears to be little caselaw directly addressing an employer's standing on
behalf of an independent contractor; caselaw on this subject largely arises from workers
compensation and medical malpractice litigation. The employment relationship between
that of an employer-employee and that of an employer-independent contractor differs.
The criteria to determine what type of employment relationship exists "'vary under
different contexts. . . . [T]here is no absolute rule for determining whether an individual is
an independent contractor or an employee.' [Citation omitted.]" Nash v. Blatchford, 56
Kan. App. 2d 592, 598, 435 P.3d 562 (2019).
"Kansas courts, however, have consistently defined an independent contractor as
'one who, in exercising an independent employment, contracts to do certain work
according to his or her own methods, without being subject to the control of the
employer, except as to the results or product of his or her work. The primary test used by
the courts . . . is whether the employer has the right of control and supervision over the
work of the alleged employee and the right to direct the manner in which the work is to
be performed, as well as the result which is to be accomplished. It is not the actual
interference or exercise of the control by the employer but the existence of the right or
authority to interfere or control, which renders one a servant rather than an independent
contractor. An independent contractor is one who, in the exercise of an independent
employment, contracts to do a piece of work according to his own methods and who is
subject to his employer's control only as to the end product or final result of his work.'
[Citations omitted.]" 56 Kan. App. 2d at 600-01.
Generally, the employer of an independent contractor, absent an act of negligence
on the employer's part, is not liable for the independent contractor's negligence or
32
improper execution of the work. Dillard v. Strecker, 18 Kan. App. 2d 899, 906, 861 P.2d
1372 (1993). However,
"'An exception to the general rule is the inherently dangerous activity doctrine, which
provides that one who employs an independent contractor to do work involving a special
danger to others which the employer knows or has reason to know to be inherent in or
normal to the work, or which he contemplates or has reason to contemplate when making
the contract, is subject to liability for physical harm caused to such others by the
contractor's failure to take reasonable precautions against such dangers.'" 18 Kan. App.
2d at 906 (quoting Balagna v. Shawnee County, 233 Kan. 1068, Syl. ¶ 4, 668 P.2d 157[1983]).
The parties do not distinguish between an employer-employee relationship or an
employer-independent contractor relationship as it relates to Trust Women and the
physicians. The facts are limited as to the type of employment relationship that existed
between Trust Women and its physicians as the parties did not focus on or raise the issue
below. Not only does Trust Women consider the physicians independent contractors, but
what facts we do have also suggest Trust Women lacks control over the physicians who
maintain a high level of independence.
There are numerous factors the court looks at to determine, under the totality of
the circumstances, whether a worker is an employee or an independent contractor. The
parties seem to agree the physicians are independent contractors but do not appreciate
that such relationship further affects Trust Women's standing to bring this suit without
naming the physicians as parties. Moreover, the physicians did not testify in this matter.
Trust Women not only failed to establish a cognizable injury, but also failed to show a
causal connection between the injury and the challenged conduct. Trust Women's
speculative future injury is insufficient to establish the cognizable injury element of
standing. Even if Trust Women had standing in this matter, there must be more than a
mere possibility that the alleged injury will occur. Based on the record, any finding that
33
the Board defendants' ability to enforce K.S.A. 65-4a10 threatens Trust Women would be
based purely on speculation.
For these reasons, I would find the district court did not abuse its discretion in
denying Trust Women's request for a temporary injunction and would affirm the district
court's finding that Trust Women lacked standing to sue the Board because it did not
suffer a cognizable injury and failed to establish a causal connection between the injury
and the challenged conduct.
34