Kansas Supreme Court: The State Constitution Protects Abortion Rights

By Dan Margolies & Celia Llopis-Jepsen – Kansas News Service

Kansas women have a fundamental right to abortion, the state’s Supreme Court ruled Friday — a decision that quickly had conservatives vowing to amend the state constitution.

The landmark ruling — triggered by a state ban on the most common form of second-trimester abortions — can’t be appealed.

Because it hinges on the state’s constitution, the ruling means abortion will remain legal in Kansas even if the U.S. Supreme Court someday reverses the 1973 Roe v. Wade decision that legalized abortion nationwide.

Friday’s 87-page decision will turbo-charge efforts among conservatives in the Kansas Legislature to ban abortion in the state constitution. That amendment would require support from two-thirds majorities in the House and Senate, followed by an OK from the state’s voters.

House speaker Ron Ryckman said the court flouted the “moral beliefs our state was founded upon.”

“Not responding would jeopardize decades of progress in Kansas law that has successfully reduced the number of abortions,” he said. “We will be working to put the question before the people.”

Senate President Susan Wagle, a Wichita Republican, criticized the decision and called abortion “violent.”

“Life is sacred,” she said, “beginning at conception.”

Lawmakers return to Topeka next week but have little time before the end of the session.

A one-line news release from Gov. Laura Kelly said she is “pleased” the ruling “conclusively respects and recognizes” women’s rights to make their own medical decisions.

The 6-1 decision cites 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.”

“We are now asked,” the justices wrote, “‘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.’”

That means, the court said, that a woman may “make her own decisions regarding her body, health, family formation, and family life — decisions that can include whether to continue a pregnancy.” The state can only curb that right if it shows “a compelling interest,” the justices wrote.

Genevieve Scott is a lawyer at the Center for Reproductive Rights, the main counsel for the plaintiffs who sued Kansas over a 2015 ban on certain abortions. The ruling, she said, will make it difficult for future laws against abortion to hold up in Kansas courts.

“Courts are going to be looking at it incredibly closely,” she said, “to make sure the state has met what is now an incredibly high bar.”

National Right to Life issued a statement calling the ruling “unconscionable” for allowing “unborn babies to be killed in such a gruesome manner.”

The question of whether Kansans have a constitutional right to abortion arose after two Overland Park physicians — Herbert Hodes and his daughter, Traci Nauser — challenged the ban on dilation and evacuation abortions.

The 2015 Kansas Unborn Child Protection from Dismemberment Abortion Act prohibited dilation and evacuation abortions. The only exceptions were saving the life of the mother, preventing impairment of major bodily functions of the mother, or where the fetus is already dead.

Kansas was the first in the nation to ban the procedure, used for nearly all second-trimester abortions. It accounts for 9% of the state’s abortions.

In today’s ruling, the Supreme Court upheld a trial court’s decision. That trial court had blocked the law, meaning physicians could still perform the procedure. The issue now returns to that lower court, where the Kansas Supreme Court’s decision means it’s highly likely that a fresh ruling will again protect the abortion procedure.

Scott, at the Center for Reproductive rights, said she is “fully confident” that will happen.

Justice Caleb Stegall wrote an 84-page dissent, arguing that Section 1 of the Constitution only prevents the state from passing laws that aren’t reasonably related to the common welfare or that are arbitrary, irrational or discriminatory.

Stegall said the majority’s decision “fundamentally alters the structure of our government to magnify the power of the state — all while using that power to arbitrarily grant a regulatory reprieve to the judicially privileged act of abortion.”

His dissent said the decision “abandons” the original meaning of that part of the Bill of Rights and “paints the interest in unborn life championed by millions of Kansans as rooted in an ugly prejudice.”

Justice Dan Biles agreed with the majority ruling but wrote separately that he would have used a different test to determine if the 2015 ban unduly restricted abortions.

Case history

The trial judge was Shawnee County District Judge Larry D. Hendricks. He blocked the law from taking effect, ruling that the Kansas Bill of Rights “independently protects the fundamental right to abortion.”

Hendricks ruled that alternatives to dilation and evacuation weren’t reasonable. He said the law “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.”

Oral arguments took place at the Supreme Court in March 2017. The high court usually rules within months, not years. The amount of time it took to decide the case reflects the high stakes involved and the degree to which abortion has polarized Kansas politics.

Before the mid-1990s, Kansas had some of the least restrictive abortion laws in the country. Wichita was home to one of the nation’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.

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

In January, Republican lawmakers proposed a constitutional amendment to effectively ban all abortions by declaring life begins at fertilization.

The bill lacked support from Kansas’ major anti-abortion group, Kansans for Life. KFL president Mary Kay Culp said she believed the amendment, if passed, would be struck down by the courts. Instead, she said the group would pursue its own amendment if the Supreme Court found a constitutional right to abortion.

Madeline Fox, a former Kansas News Service reporter, contributed to this article.

Dan Margolies is a senior reporter and editor at KCUR. 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.