Month: April 2019

Kansas Supreme Court says state constitution protects abortion rights

by Dan Margolies and Celia Llopis-Jepsen, Kansas News Service

The Kansas Constitution protects a woman’s right to an abortion, the state’s Supreme Court ruled Friday.

The landmark ruling now stands as the law of the land in Kansas with no path for an appeal. Because it turns on the state’s constitution, abortion would remain legal in Kansas even if the Roe v. Wade case that established a national right to abortion is ultimately reversed by the U.S. Supreme Court.

The decision is likely to turbo-charge efforts among conservatives in the Kansas Legislature to ask voters to add an abortion ban to the state constitution. Lawmakers return to Topeka next week.

The decision, in which one of the seven justices dissented, cites in its first sentence the first section of the Kansas Constitution’s Bill of Rights: “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”

The decision continues: “We are now asked: ‘Is this declaration of rights more than an idealized aspiration? And, if so, do the substantive rights include a woman’s right to make decisions about her body, including the decision whether to continue her pregnancy? We answer these questions, ‘Yes.’”

The court continued that “this right allows a woman to make her own decisions regarding her body, health, family formation, and family life — decisions that can include whether to continue a pregnancy.

“The State may only infringe upon the right to decide whether to continue a pregnancy if the State has a compelling interest and has narrowly tailored its actions to that interest.”

The question of whether the state constitution enshrines a right to abortion arose after two abortion providers in Overland Park — physicians Herbert Hodes and his daughter, Traci Nauser — challenged a ban on dilation and evacuation abortions passed by the Legislature in 2015.

The Kansas Unborn Child Protection from Dismemberment Abortion Act prohibits dilation and evacuation abortions except when necessary to preserve the life of the mother, prevent impairment of a major bodily function of the mother or where the fetus is already dead.

The law was the first in the nation to ban the procedure, which is used for nearly all second-trimester abortions.

The procedure only accounts for 9 percent of abortions in Kansas. Anti-abortion activists call it “dismemberment abortion” but it’s known medically as dilation and evacuation, or D&E.

In July 2015, Shawnee County District Judge Larry D. Hendricks blocked the law from taking effect, ruling that the Kansas Bill of Rights “independently protects the fundamental right to abortion.”

Hendricks also ruled that alternatives to D&E weren’t reasonable, “would force unwanted medical treatment on women, and in some instances would operate as a requirement that physicians experiment on women with known and unknown safety risks as a condition (of) accessing the fundamental right of abortion.”

The state appealed. In a sweeping decision in January 2016, the Kansas Court of Appeals upheld Hendricks, finding that the state constitution’s Bill of Rights provides a right to abortion. It was the first time a Kansas appellate court had found such a right in the Kansas Constitution.

Signifying the importance of the case, all 14 judges on the appeals court weighed in. The court split down the middle, with seven judges voting to uphold Hendricks’ decision and seven voting to reverse it. When an appeals court is equally divided, the effect is to uphold the decision of the trial court.

Writing for the faction voting to strike down the ban, Judge Steve A. Leben said that the “rights of Kansas women in 2016 are not limited to those specifically intended by the men who drafted our state’s constitution in 1859.”

Then-Gov. Sam Brownback, a conservative Republican and devoted abortion opponent, issued a statement saying he was “deeply disappointed in the court’s decision to allow dismemberment abortions of a living child to continue in the State of Kansas. The court’s failure to protect the basic human rights and dignity of the unborn is counter to Kansans’ sense of justice.”

The state appealed again. The state’s high court heard arguments in the case in March 2017. The amount of time it took for it to decide the case — it usually rules within months of oral arguments, not years — reflects the extraordinarily high stakes involved and the degree to which the abortion issue has polarized Kansas politics.

Hodes’ and Nauser’s challenge to the law was unusual in that they did not argue the statute is illegal under the U.S. Constitution. Rather, they based their argument on the Kansas Constitution, contending that Sections 1 and 2 of its Bill of Rights recognize a “fundamental right to abortion.”

The state countered that the Kansas Constitution could not protect abortion rights because abortion was largely illegal when the document was drafted in 1859.

Before the mid-1990s, Kansas had some of the least restrictive abortion laws in the country. Wichita was home to one of the country’s few third-trimester abortion providers, physician George Tiller, who survived one attempt on his life and was later killed by an anti-abortion extremist in 2009.

But the Summer of Mercy anti-abortion protests in 1991 spurred political mobilization that elected more anti-abortion lawmakers to the Kansas Legislature. They, in turn, passed laws and regulations requiring minors to get consent from their parents for an abortion procedure, preventing state-funded insurance plans from covering abortions and requiring women on private insurance plans to pay for a separate abortion rider if they wanted insurance to cover the procedure.

This January, Republican lawmakers proposed a constitutional amendment that would effectively ban all abortions in Kansas by declaring life begins at fertilization.

The bill did not have the support of Kansas’ major anti-abortion group, Kansans for Life. KFL president Mary Kay Culp said she believed the proposed amendment, if passed, would be struck down by the courts. Instead, she said the group would pursue its own constitutional amendment if the Supreme Court were to rule the Kansas Constitution establishes a right to an abortion.

Dan Margolies is a senior reporter and editor at KCUR, www.kcur.org. You can reach him on Twitter @DanMargolies.
Celia Llopis-Jepsen is a reporter for the Kansas News Service, a collaboration of KCUR, Kansas Public Radio, KMUW and High Plains Public Radio covering health, education and politics. You can reach her on Twitter @Celia_LJ.
See more at https://www.kcur.org/post/kansas-supreme-court-state-constitution-protects-abortion-rights.

Woodlands’ permit sent back to Planning Commission

The Unified Government Commission on Thursday night sent back The Woodlands’ special use permit for storing vehicles to the Planning Commission.

For almost a year, The Woodlands, a horse and dog racetrack not currently running races, has been parking motor vehicles in its parking lot under a temporary permit. A revocation of the permit was on the Thursday UG agenda, but the commission decided to send the issue back to clarify two issues.

The motion by Commissioner Melissa Bynum returned the issue to the Planning Commission for clarification around two items within the special use permit, the first, how vehicles were to be delivered to the location with stipulations, and second, codifying the hours of operation. The motion passed unanimously.

There seemed to be general consensus among the planning staff, commissioners and The Woodlands that they would keep to hours between 7:30 a.m. and 7:30 p.m. to deliver the vehicles, and they could be driven individually or delivered by truck. Commissioner Bynum said she would like to see a written public agreement between the UG and The Woodlands.

Planning Director Rob Richardson said when the special use permit was approved earlier, it was the understanding that the vehicles would be delivered by trucks. There has been a change, however, with Ford vehicles being driven individually from a train on Kansas Avenue to The Woodlands at 97th and Leavenworth Road. The vehicles are parked temporarily at The Woodlands before being shipped somewhere else.

The original permit limited the number of semi trucks allowed per day, but did not address vehicles being driven there. There was a change where as many as 250 cars a day were driven to The Woodlands individually. Richardson said the UG was responding to complaints from nearby residents.

R. Scott Beeler, an attorney representing The Woodlands, said they had been trying to work with the UG and comply with the stipulations on the permit. He said revocation would be an extreme remedy. He said in the future, there may be semis delivering vehicles, as well as vehicles driving individually to The Woodlands. He also said the permit was a very valuable asset to The Woodlands.

The Woodlands’ parking lot was being used to temporarily store vehicles while the track was waiting for the Kansas Legislature to approve a bill that would increase the amount of gaming revenue the track owners could keep.

The concerns at the original hearing were limited to how much noise and traffic there would be from the trucks, as well as how they would enter and exit the property, he said. They agreed not to use the 99th Street entrance because there were about four or five homeowners between Leavenworth Road and the 99th Street entrance. There were also about five homes on the south side of Leavenworth Road across from The Woodlands, he said.

The permit was not revoked on Thursday, but it would have been a moot point, at least temporarily, if it had. Beeler said there are currently no vehicles parked at The Woodlands, and that the need for parking fluctuates with Ford’s production and the availability of enough railroad cars for shipping. He expected that there would be a need to park cars there again later in the year, possibly August or September.

Beeler said at the time the permit was issued, they did not know that they would be driving cars there individually. The change came about because of cost, according to Beeler, and the decision came about through the manufacturer and a contractor.

A few of the semi truck drivers in the early days had used the 99th Street entrance, when that was not allowed by the permit, according to Beeler. When that happened, the drivers were told they could not use 99th.

There was one incident where a truck drove through a resident’s yard, and that was repaired within one week, Beeler said.

Beeler said they later were driving as many as 250 vehicles a day individually to The Woodlands, and that Leavenworth Road is designed to handle 40,000 trips a day. The permit had stated that there could be 60 semi truck trips a day to The Woodlands. It did not say anything about the number of vehicles that could be individually driven there, and the permit did not restrict the time individual vehicles could be driven there, he said. Beeler said he went back to Ford and the contractor and told them that The Woodlands would not extend the contract unless the hours would be 7:30 a.m. to 7:30 p.m., and they have agreed to it.

Commissioner Bynum said she had talked to some of the neighbors about their concerns. While it was a small number of neighbors, it was probably about half of those who lived close to the track, she said.

Some neighbors complained about noise, lights and traffic to the UG. Some said that earlier, vehicles were being driven individually to The Woodlands after 7:30 p.m.

Neighbors had complained to the UG that the vehicles driving individually to The Woodlands did not have license tags. Beeler said they checked with different agencies and the vehicles just had to have the proper transit paperwork.

He said there was a mass stop of the vehicles from multiple police officers of a group of 20 to 25 individually driven vehicles. He said there were no legal violations.

“There was a police presence, rather regularly, in front of The Woodlands,” he said. Out of all the vehicles, there was only a single vehicle where the driver had not properly displayed the transit paperwork, he said.

“I don’t know why the police came in the first place, especially since it had been determined that these vehicles were properly there,” he said.

Beeler said The Woodlands was willing to say that the hours of individually driven cars would be 7:30 a.m. to 7:30 p.m. He said he believed there were no issues left to resolve.

One nearby resident who initially was in favor of the revocation said she changed her mind after talking with Woodlands staff. Her objection had been to lights from vehicles late at night that were coming in her windows, but as the vehicles will not be driven after 7:30 p.m. in the future, she said she could deal with it. Beeler said an incident occurred with a resident who had pulled over and shined lights in her windows, and it was not from vehicles being delivered to The Woodlands.

Another resident of the area, who was in favor of revocation of the permit, told the commission that she believed a certain type of temporary Kansas license plate was required for vehicles being driven there. Beeler said these were not required, but transit paperwork was required.

The resident said on March 26, the police stopped vans driving to The Woodlands that did not have license plates. The resident said some of the vehicles currently had Kentucky license plates, which she said did not apply in Kansas. She said she worked 13 years in auto licensing, and the state has a 30-day permit and 60-day permit.

According to Beeler, however, there is transit paperwork that allowed the vehicles to be driven legally to The Woodlands. The vehicles are in transit and have not yet been sold.

Today’s high near 70, showers possible tonight

Between 1 to 1.5 inches of rain is possible through Monday evening, according to the National Weather Service. (National Weather Service graphic)

Several rounds of showers and thunderstorms are possible Saturday through the first half of next week, while today’s high will reach 70 in Wyandotte County, according to the National Weather Service.

From 1 to 2 inches of rain is expected through Monday in areas, with additional rain possible Tuesday through Thursday, leading to flooding concerns, the weather service said.

Today, it will be sunny with a high near 70 and a north wind of 5 to 9 mph becoming calm in the afternoon, the weather service said.

Tonight, there is a 60 percent chance of showers and possibly a thunderstorm, mainly after 4 a.m., according to the weather service. The low will be around 55 with a south wind of 6 to 14 mph, gusting as high as 20 mph.

Saturday, there is a 60 percent chance of showers and possibly a thunderstorm before 7 a.m., then a chance of showers between 7 a.m. and 1 p.m., the weather service said.

Saturday night, it will be mostly clear, with a low of 38 and a northeast wind of 8 to 18 mph, gusting to 29 mph, according to the weather service.

Sunday, there will be a 30 percent chance of showers after 1 p.m., with a high near 62, the weather service said. An east southeast wind of 7 to 11 mph will gust as high as 18 mph.

Sunday night, there is an 80 percent chance of showers, then showers and possibly a thunderstorm after 1 p.m., according to the weather service. New rainfall amounts between three-quarters and 1 inch are possible.

Monday, there is a 50 percent chance of showers before 1 p.m., with a high near 66, the weather service said.

Monday night, there is a 50 percent chance of showers after 1 a.m., with a low of 47, according to the weather service.

Tuesday, there is a 60 percent chance of showers, with a high near 60, the weather service said.

Tuesday night, there is a 70 percent chance of showers likely, mainly before 1 a.m., with a low of 51, according to the weather service.

Wednesday, there is a 40 percent chance of rain, with a high near 70, the weather service said.

Wednesday night, there is a 70 percent chance of showers, with a low of 56, according to the weather service.

Thursday, there is a 30 percent chance of showers, with a high near 71, the weather service said.