Kansas’s Supreme Court is considering whether the state can restrict how doctors terminate second-trimester pregnancies or impose additional health and safety regulations on abortion providers after a decisive statewide vote last year that affirmed that the state constitution protects abortion rights.
The state Supreme Court will hear arguments Monday from state attorneys and abortion providers in two lawsuits. One is challenging a 2015 law that bans a common second-trimester abortion procedure, and the other is challenging a 2011 law that regulates abortion providers more strictly than other providers. Legal challenges have blocked enforcement of both laws.
The U.S. Supreme Court declared in June 2022 that the U.S. Constitution does not protect abortion rights and that states can prohibit abortion, but the Kansas court ruled in 2019 that access to abortion is a “fundamental” right under the state constitution. That prompted the Republican-controlled legislature to place an amendment to last August’s ballot asking voters to remove those constitutional protections that would allow lawmakers to heavily restrict or ban abortion. However, voters firmly rejected the measure.
Kansas allows the most abortions up to the 22nd week of pregnancy, attracting patients from other states with a ban, especially Missouri, Oklahoma and Texas. Abortion opponents fear Kansas courts will reverse many of the restrictions imposed over the past 30 years. But they also see the two cases before the state’s highest court as an opportunity for the seven judges to reconsider the 2019 decision or at least narrow its scope.
“There’s no way of knowing what they’re going to do, but honestly I think there’s a reason for them to back out,” Kansas House Speaker Dan Hawkins, a Wichita Republican who opposes abortion rights, said before the hearings.
MONTHS AFTER KANSAS VOTERS HAVE CONFIRMED ABORTION RIGHTS, REPUBLICAN LAWMAKER PROPOSE SEVERAL NEW LAWS
The court will likely take months to make a ruling.
Among Republican states, Kansas has been an outlier in preserving access to abortion, in part because the state’s opponents of abortion favored incremental year-to-year changes ahead of the U.S. Supreme Court’s ruling of last year.
However, the state still forces patients to wait 24 hours before having an abortion, requires minors to obtain parental consent, spells out what patients must be told in advance in writing, and even requires patient information to be printed in 12-point Times New Roman type.
Three members of the court’s 6-1 majority retired following the 2019 decision, but their replacements were all named by Democratic Gov. Laura Kelly, a strong supporter of abortion rights.
A woman from Topeka, Kansas, stands on the steps of the Kansas Statehouse during a rally to protest the June 24, 2022 Supreme Court ruling on abortion. The state Supreme Court will review two lawsuits over abortion laws in the state. (AP Photo/Charlie Riedel, File)
“The court was clear before, and they did a very comprehensive analysis of the state constitution,” said Emily Wales, president and CEO of Planned Parenthood Great Plains, which operates three of the six Kansas clinics that offer abortions.
She added: “I would much rather be on the side of abortion rights.”
The 2019 state Supreme Court ruling came in the early stages of the lawsuit banning the procedure in the second quarter. The judges kept the law on hold, but sent the case back to court to further investigate the ban. A first-instance judge said the law could not stand.
KANSAS ABORTION CONSTITUTIONAL AMENDMENT REJECTED BY VOTERS
The law addresses a particular type of dilation and evacuation or D&E procedure. According to state health department statistics, approximately 500 D&E procedures are performed in Kansas each year, accounting for 6% of the state’s total abortions. About 90% of abortions in the state occur in the first trimester.
A ban on D&E procedures would force providers to use alternative methods that the Center for Reproductive Rights, an abortion rights advocate, say are riskier for the patient and more expensive.
Abortion providers viewed the law requiring them to adhere to stricter rules than types other than physicians as an attempt to drive them out of business. Before it went into effect in July 2011, it briefly seemed that no provider in Kansas would be able to comply, although a Planned Parenthood clinic in Kansas City eventually did. A judge ruled that the state had no justification for rules applying only to abortion providers, and the state appealed.
“The court has to be objective and they have to do what they have to do,” said State Representative Stephanie Clayton, a Kansas City Democrat. “But of course I hope we get victories for privacy and bodily autonomy and choice in the state.”
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Those behind the clinic regulation bill argued that it would make clinics safer for women seeking abortions.
Their argument for banning the procedure in the second trimester was summed up in the way they wrote the law. It would specifically prohibit doctors from using forceps or similar instruments on a live fetus to remove it from the uterus in pieces. Such instruments are used in some D&E abortions.
“Absolutely, we hope the Kansas Supreme Court will realize it’s gone too far,” said Jeanne Gawdun, a lobbyist for Kansans for Life, the most influential anti-abortion group at the Kansas Statehouse and a major player within the state. GOP.
