## Facts

- E. Michelle Ruebke, a nonlicensed lay midwife, provided prenatal, intrapartum, and postpartum care primarily in home-birth settings.
- She did not hold herself out as a licensed nurse or physician, did not charge fees, and described her work as a ministry.
- She followed midwifery standards and maintained relationships with physicians for consultation and transfer in case of complications.
- A prior consent decree required her to work under physician supervision; the district court found she complied.
- In 1993, the State Board of Healing Arts adopted a policy asserting that lay midwifery constituted the practice of medicine and surgery and would be treated as unlicensed practice without nursing-board approval.
- The State Board of Nursing and the State (ex rel. the State Board of Healing Arts) sought a temporary injunction to stop Ruebke from practicing medicine and surgery and/or professional nursing without a license.
- The district court denied the temporary injunction, ruling certain provisions of the Healing Arts Act and Nursing Act were unconstitutionally vague, that her conduct was outside both Acts, and that statutory exceptions (including physician supervision) would apply even if the Acts covered her conduct.
- The Boards appealed the denial of the temporary injunction.

## Issues

1. Whether provisions of the Kansas Healing Arts Act and Kansas Nursing Act are unconstitutionally vague as applied to Ruebke’s lay midwifery.
2. Whether lay midwifery assisting normal pregnancy and childbirth constitutes the “practice of medicine and surgery” or “healing arts” under the Kansas Healing Arts Act.
3. Whether Ruebke’s activities constitute the practice of professional nursing under the Kansas Nursing Act.
4. Whether statutory exemptions, including the Healing Arts Act exemption for persons acting under physician supervision, apply to Ruebke’s conduct.
5. What appellate standard applies when a temporary injunction is denied based on a trial court’s conclusion that the authorizing statute is unconstitutional.

## Decision

- The Kansas Supreme Court applied unlimited review to the district court’s constitutional ruling because the denial of injunctive relief rested on statutory unconstitutionality.
- The court reversed the district court’s holding that the relevant provisions of the Healing Arts Act and Nursing Act were void for vagueness.
- The court held that lay midwifery in normal pregnancy and childbirth, as practiced by Ruebke, did not fall within the statutory definition of the healing arts or the practice of medicine and surgery.
- The court held that Ruebke’s conduct did not constitute the statutory practice of professional nursing.
- As an alternative basis, the court concluded that physician-supervision and related statutory exceptions would bar treating her work as unlicensed practice on these facts.
- The court affirmed the denial of the temporary injunction while reversing the declaration of unconstitutionality.

## Legal Principles

- When a trial court denies a temporary injunction on the ground that the governing statute is unconstitutional, the appellate court reviews the constitutional question as a matter of law with unlimited review.
- A licensing statute with potential criminal consequences is not void for vagueness if an ordinary person using common sense can understand what conduct is prohibited; terms with settled legal meaning are not unconstitutionally vague.
- Statutory definitions of “healing arts” and the “practice of medicine and surgery” that focus on pathology and abnormal conditions do not, without clear legislative direction, reach assistance with normal pregnancy and childbirth.
- The statutory definition of professional nursing focused on “changes in normal health processes” does not encompass lay midwifery for normal, uncomplicated pregnancy and childbirth as a regulated monopoly absent clear legislative inclusion.
- Where an explicit statutory exemption applies (including acting under physician supervision), injunctive relief for unlicensed practice is improper even if some conduct might otherwise resemble regulated practice.

## Conclusion

The Kansas Supreme Court held that the professional-licensing statutes were not unconstitutionally vague, but it construed the Healing Arts Act and Nursing Act not to prohibit lay midwifery for normal childbirth on these facts and, alternatively, found applicable statutory exemptions; it therefore affirmed the denial of a temporary injunction against the lay midwife while reversing the trial court’s vagueness ruling.


State Bd. of Nursing & State Bd. of Healing Arts v. Ruebke, 259 Kan. 599, 913 P.2d 142 (Kan. 1996)