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.