Kansas Supreme Court overturns two anti-abortion laws and reaffirms previous stance on state constitution

FILE PHOTO: The Kansas State Capitol building in Topeka, Kansas, U.S., May 12, 2016. Photo by Dave Kaup/REUTERS

TOPEKA, Kansas (AP) — Kansas’ highest court on Friday struck down laws that imposed stricter regulations on abortion doctors than on other health care professionals and banned a common procedure in the second trimester, reiterating its position that access to abortion is protected by the state constitution.

“We maintain our conclusion that Section 1 of the Kansas Constitution’s Bill of Rights protects a fundamental right of personal autonomy, which includes the right of a pregnant person to terminate a pregnancy,” Justice Eric Rosen wrote on behalf of the majority in striking down the ban on a certain type of dilation and evacuation, also known as D&E.

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In striking down the hospital regulations law, the panel concluded that the state had failed to meet its “burden of proof to show that the challenged laws serve its interests in protecting maternal health and in regulating the medical profession with respect to maternal health.”

The Kansas Supreme Court’s 5-1 rulings in two separate cases indicate that the state’s Republican-dominated legislature faces tighter restrictions on regulating abortion than GOP lawmakers thought, and suggest that other restrictions may fall. Lawsuits in lower state courts are already challenging restrictions on medication abortion, a ban on doctors using teleconferencing with patients, rules on what doctors must tell patients before performing an abortion, and a requirement that patients wait 24 hours after receiving information about a procedure to terminate their pregnancy.

Judge KJ Wall did not participate in any of Friday’s rulings, while Judge Caleb Stegall was the only one to dissent.

In his dissent in the clinic regulations case, Stegall said the majority’s actions would damage the court’s legitimacy “for years to come.” He said the declaration that the state constitution protects the right to bodily autonomy could affect a “massive swath” of health and safety regulations outside of abortion, including licensing requirements for hair salons.

“Surely the government has no compelling interest in who trims my beard,” Stegall wrote. “Let the litigation begin in this new, target-rich environment. The majority has – perhaps unwittingly – put the entire administrative state under scrutiny.”

Stegall, who was appointed by conservative Republican Governor Sam Brownback, is widely considered the most conservative member of the court.

The Kansas Supreme Court declared in a 2019 decision that access to abortion is a matter of bodily autonomy and a “fundamental” right under the state constitution. Voters also soundly rejected a proposed amendment in August 2022 that would have explicitly declared abortion not a fundamental right and would have allowed state lawmakers to severely restrict or ban it.

Lawyers for the state had asked the judges to overturn the 2019 ruling and uphold the two laws, which had not yet been enforced due to the litigation surrounding them. The state’s attorney general, appointed by Republican Attorney General Kris Kobach, had argued that the 2022 vote was irrelevant to deciding whether the laws could stand.

The court disagreed, giving abortion rights advocates a major legal victory.

Kansas has become an outlier among states with Republican-dominated legislatures since the U.S. Supreme Court handed down its Dobbs ruling in June 2022, allowing states to ban abortion entirely. That has led to an influx of patients from states with more restrictive laws, particularly Oklahoma and Texas. The Guttmacher Institute, which advocates for abortion rights, predicted last month that about 20,000 abortions would be performed in Kansas in 2023, up 152% from 2020.

Kansas bans most abortions until 22 weeks of pregnancy, but requires minors to have written consent from their parents or guardians. Other requirements, including the 24-hour waiting period and what a doctor must tell patients, have been put on hold. A lower court is considering challenging those requirements from doctors.

Abortion opponents argued ahead of the August 2022 vote that a failure to amend the state constitution would derail long-standing restrictions under previous Republican governors. Kansas saw a spate of new restrictions from 2011 to 2018 under former Republican Governor Sam Brownback.

The health and safety rules, aimed specifically at abortion providers, were enacted in 2011. Proponents said they would protect women’s health — even though there was no evidence at the time that such rules led to better health outcomes in other states. Providers said the real goal was to put them out of business.

The ban on a certain type of D&E procedure in the second trimester was the first of its kind when it came into force in 2015.

According to statistics from the state Department of Health, about 600 D&E procedures were performed in Kansas in 2022, representing 5% of all abortions in the state. About 88% of the state’s abortions occurred in the first trimester. The state has not yet released statistics for 2023.

Banning the procedure would have forced providers to use alternative methods that are riskier for the patient and more expensive, according to the Center for Reproductive Rights, an abortion rights advocacy group.

The 2019 ruling came at an early stage in the legal battle over the 2015 ban. The judges stayed the law but sent the case back to the court for further review of the ban. A trial judge said the law could not stand.

Three of the court’s seven justices have joined the court since the 2019 decision. All three were appointed by Democratic Gov. Laura Kelly, a strong supporter of abortion rights, but one of the three – Wall – recused himself from the cases.