Kansas Supreme Court overturns state law banning second-trimester abortions • Kansas Reflector

TOPEKA – The Kansas Supreme Court on Friday affirmed a woman’s fundamental constitutional right to terminate a pregnancy, striking down a state law that banned a second-trimester abortion method.

In a simultaneous decision, the state Supreme Court ruled by a majority that a state law imposed a wide range of requirements on abortion doctors and clinics that went far beyond the requirements for medical professionals engaged in comparable health care services was unconstitutional.

Justice Eric Rosen, a judge appointed by Democratic Governor Kathleen Sebelius, wrote for the majority in the abortion case that Senate Bill 95, which bans abortions by a method that may involve the dismemberment of a fetus, violates the Kansas Constitution’s Bill of Rights.

Alice Wang, an attorney with the Center for Reproductive Rights who represents abortion providers, had argued that the law interfered with the right to bodily autonomy enshrined in the state’s Bill of Rights. The court majority agreed, concluding that the Kansas attorney general’s office failed to show that the interference could be justified because it was narrowly drawn or served a compelling state interest.

“In short, SB 95 does not promote patient safety. It jeopardizes patient safety,” Rosen wrote in his opinion. “As the district court found and the state did not object, SB 95 eliminates a safe and common medical procedure and leaves patients with procedures that are rarely used, untested, and sometimes more dangerous or impossible.”

Anthony Powell, the state’s solicitor general under Attorney General Kris Kobach, argued unsuccessfully that the 2015 law must be upheld because it promotes respect for the dignity of human life, protects the interests of innocent third parties and provides basic regulation of medical care in Kansas.

Rosen noted that Powell had asked the state Supreme Court to overturn its 2019 decision that the right to personal autonomy was enshrined in the Kansas Constitution and gave Kansans the ability to “govern their own bodies, assert their bodily integrity and exercise self-determination.” That decision meant that women in Kansas had the right to decide whether to continue a pregnancy, despite the U.S. Supreme Court’s overturning of Roe v. Wade.

“The state has spent much of its brief asking us to reverse our earlier decision in this case that the Kansas Constitution protects a right to abortion. We reject that request,” Rosen said. “We maintain our conclusion that Section 1 of the Kansas Constitution’s Bill of Rights protects a fundamental right to personal autonomy, which includes the right of a pregnant person to terminate a pregnancy.”

The Kansas Legislature passed the Kansas Unborn Child Protection from Dismemberment Abortion Act in 2015—98 to 26 in the House, 31 to 9 in the Senate—and Republican Gov. Sam Brownback signed it. It targeted the second-trimester abortion method often called “dilation and evacuation,” or D&E. The law included an exception to save the life of a pregnant woman facing significant and irreversible medical harm.

Before the law took effect in 2015, doctors Herbert Hodes and Traci Lynn Nauser, who performed the procedure, filed a lawsuit. A Shawnee County District Court judge issued an order in 2021 granting the plaintiffs’ request for a permanent injunction against enforcement of the law, but the state appealed. Judges on the Kansas Court of Appeals disagreed on whether the Kansas Constitution protects a right to abortion, so the injunction remained in effect. The case went to the state Supreme Court, which ultimately upheld the district court’s decision.

As the case wound its way through Kansas’ judicial system, the U.S. Supreme Court ruled in June 2022 that the U.S. Constitution does not protect abortion rights and states can impose abortion bans. In August 2022, Kansas voters rejected, 59% to 41%, a proposed constitutional amendment that would have overturned the state Supreme Court’s 2019 decision and found that there is no “right to abortion” in Kansas.

“Kansas voters made it loud and clear in 2022: the right to abortion must be protected,” said Nancy Northup, president and CEO of the Center for Reproductive Rights. “This is an immense victory for the health, safety and dignity of the people of Kansas and across the Midwest, where millions of people have been denied access to abortion. We will continue our fight to ensure that Kansans have access to the essential health care they need in their home state.”

Judge KJ Wall, appointed by Democratic Gov. Laura Kelly, has recused himself in the D&E abortion case. The 5-1 decision did not change state law that allows most abortions before 22 weeks of pregnancy.

Judge Evelyn Wilson, also appointed by Kelly, wrote a concurring opinion in the dismemberment abortion case. She said SB 95 was unconstitutional because it was vaguely worded by the legislature. It unfairly leaves doctors vulnerable to prosecution and the opinions of jurors who may evaluate evidence by standards other than reasonable medical judgment, she said.

“In my view, the absence of any identifiable standard by the legislature means that the physician’s expert decision will inevitably be challenged by prosecutors, judges and juries who will apply a personal and ultimately mysterious standard to the physician’s conduct,” Wilson wrote.

In the lone dissenting opinion, Justice Caleb Stegall said that neither the 2019 decision upholding abortion rights in Kansas nor the majority’s recent opinion bore “no resemblance whatsoever – either legally or historically – to the actual text and original public meaning” of Section 1 of the state constitution’s Bill of Rights.

Stegall, who was appointed to the Supreme Court by Brownback, said the majority’s abortion decisions were momentous because they changed the structure of state government. The abortion cases increased the state’s power and used that authority to grant “a regulatory stay of the judicially privileged act of abortion.”

“It is remarkable that the majority cannot bring itself to recognize the government’s compelling interest in unborn human life,” Stegall wrote.