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Kansas Supreme Court: State Constitution Protects Abortion Rights

The Kansas Judicial Building in Topeka is home to the Kansas Supreme Court

SCOKAN: Kansas Constitution Protects Abortion Rights

The right to life, liberty and the pursuit of happiness in the Kansas constitution means women have the right to decide whether or not to have an abortion.  That was the ruling of the Kansas Supreme Court today (FRI).  Kansas News Service editor Amy Jeffries spoke with reporter Dan Margolies about the implications.

That's reporter Dan Margolies, speaking with Amy Jeffries, editor at the Kansas News Service.

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Kansas Supreme Court: The State Constitution Protects Abortion Rights
By Dan Margolies and Celia Llopis-Jepsen

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 likely 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 was “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 justices 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.”

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 to make sure the state has met what is now an incredibly high bar,” she said.

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 the procedure. 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 D&E procedure, used for nearly all second-trimester abortions. It accounts for 9% of the state’s abortions.

In its ruling, the Supreme Court upheld a trial court’s decision blocking 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 it.

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

In an 84-page dissent, Justice Caleb Stegall argued 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.”

The decision, he said, “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

In 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 found 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 typically 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.

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Dan Margolies is a senior reporter and editor at KCUR Radio. You can reach him on Twitter @DanMargolies.

Celia Llopis-Jepsen is a reporter for the Kansas News Service, a collaboration of KCUR Radio, Kansas Public Radio, KMUW Radio and High Plains Public Radio - dedicated to covering health, education and politics. You can reach her on Twitter @Celia_LJ

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


(AP version)

Kansas Court Bolsters Abortion Rights, Blocks Ban
By JOHN HANNA AP Political Writer

TOPEKA, Kan. (AP) — Kansas's highest court declared for the first time Friday that the state constitution protects abortion rights, a sweeping ruling that blocks a ban on a common second trimester method for ending pregnancies and endangers other restrictions as well.

The state Supreme Court's decision immediately roiled Kansas politics. Abortion opponents called for amending the state constitution but might wait to push for a change until next year, when all state lawmakers face voters.

The court's decision was a big victory for abortion rights supporters in a state with a Republican-controlled Legislature long hostile to their cause. It also comes with other, GOP-controlled states moving to ban most abortions in direct challenges to the U.S. Supreme Court's landmark 1973 Roe v. Wade decision legalizing abortions across the nation.

"I'm beyond elated," said Julie Burkart, CEO and founder of the Trust Women Foundation, which operates a clinic providing abortions in Wichita. "This is what we were hoping for."

The decision prevents the state from enforcing what was a first-in-the-nation 2015 law that could have greatly limited second trimester abortions. But even worse for abortion opponents, the ruling clears the way for legal challenges to a string of abortion restrictions approved by state lawmakers under Republican governors before last year's election of Democratic Gov. Laura Kelly, an abortion rights supporter.

"It's very extreme," said Mary Kay Culp, executive director of Kansans for Life, the state's most influential anti-abortion group. "It's as bad as we could have imagined it and has potential to overturn pro-life laws."

The court's majority said vague language protecting "equal and inalienable rights" in the first section of the Kansas Constitution's Bill of Rights grants a "natural right of personal autonomy" that includes the right to "control one's own body" and to decide whether to continue a pregnancy.

The 6-1 majority rejected the state's arguments that there is no protection for abortion rights because most abortions were illegal in Kansas Territory when the state constitution was written in 1859. The majority said at the time, women faced a "paternalistic attitude" and a lack of recognition that they had the same rights as men.

"True equality of opportunity in the full range of human endeavor is a Kansas constitutional value, and it cannot be met if the ability to seize and maximize opportunity is tethered to prejudices from two centuries ago," the unsigned majority opinion said.

The court also declared that restrictions on abortion will face strict scrutiny, so the state must show that a law is narrowly drawn to deal with a "compelling" interest. That's higher than the U.S. Supreme Court's standard that under the federal constitution, restrictions must avoid placing an undue burden on a woman's access to abortion.

The Kansas court's dissenter was Justice Caleb Stegall, the only appointee of a conservative Republican governor. The court's two most senior justices were appointed by a moderate Republican, and four by a Democrat. Conservative Republicans have long complained that the court is too liberal — and Kansans for Life tried in 2016 to oust four of the justices in Friday's majority when voters ultimately decided that they should stay on the bench for another six years.

Stegall declared that "an important right of self-government has been stolen away" from Kansans residents and derided the majority for suggesting that "luminaries of the western legal tradition" would support "nearly unfettered abortion access."

"In this imagined world, the Liberty Bell rings every time a baby in utero loses an arm," Stegall wrote.

Top Republican legislators also quickly condemned the decision, saying it was out of step with the state's values. Kansas Attorney General Derek Schmidt, a Republican, even suggested the ruling had "breathtaking" implications beyond abortion and signaled "an ever-expanding role" for courts in setting policy.

Legislators could pursue a constitutional amendment after they reconvene Wednesday following an annual spring break. However, GOP leaders had wanted to wrap up business within a week, and Culp said Kansans for Life wants to make sure it is "as organized and strategic and successful" as possible for a push to amend the constitution.

The decision Friday came two years after the Kansas court heard arguments from attorneys, an unusually long delay for a ruling. Iowa's Supreme Court issued a similar decision in 2018.

Kelly said she is pleased that the court has recognized a woman's right to "make her own medical decisions." Burkhart said Trust Women will be considering what other restrictions can be challenged.

In previous cases, Kansas's highest court avoided the question of whether the state constitution protects abortion rights, allowing U.S. Supreme Court decisions to determine what restrictions would be allowed.

But when two providers sued over the 2015 law, a state district court judge blocked its enforcement and declared that the Kansas Constitution protects abortion rights.

The Supreme Court sent the case back to the lower court for a trial on the lawsuit but kept the judge's injunction in place, saying the providers are likely to succeed in invalidating the law.

The law would bar physicians from using forceps or similar instruments on a live fetus to remove it from the womb in pieces, using the non-medical term "dismemberment abortion" to describe the procedure. Such instruments are commonly used in dilation and evacuation procedure, which the Center for Reproductive Rights has described as the safest and most common abortion procedure in the U.S. in the second trimester.

The Kansas law was model legislation drafted by the National Right to Life Committee. The group says similar bans have been enacted in 10 other states — Oklahoma, West Virginia, Mississippi, Alabama, Louisiana, Arkansas, Texas, Kentucky, Ohio and North Dakota.

Abortion providers reported performing 484 dilation and evacuation procedures in Kansas in 2018, according to state health department statistics. That was 6.9% of the state's total abortions; most pregnancies were terminated during the first trimester.

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Associated Press reporter Roxana Hegeman in Wichita also contributed to this story.


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