TOPEKA, Kan. – Kansas’ highest court signaled Monday that it still considers access to abortion a “fundamental” right under the state constitution, as an attorney for the state argued that a decisive statewide vote last year affirming abortion rights “doesn't matter."
The state Supreme Court is considering exactly how far the Republican-controlled Legislature can go in restricting abortion under a 2019 decision protecting abortion rights. The justices heard arguments from attorneys for Kansas and abortion providers in two lawsuits but isn't likely to rule for months.
One lawsuit challenges a 2015 law banning a common second-trimester abortion procedure, and the other challenges a 2011 law that regulates abortion providers more strictly than other health care providers. Legal challenges have blocked both laws from being enforced.
The U.S. Supreme Court declared in June 2022 that the U.S. Constitution doesn't protect abortion rights and that states can ban abortion, but the Kansas court had ruled in 2019 that access to abortion is protected as a matter of bodily autonomy under the state constitution. That led the Legislature to put a proposed amendment on last August's ballot asking voters whether to lift that constitutional protection, which would have allowed lawmakers to greatly restrict or ban abortion. Voters soundly rejected the measure.
But Kansas Solicitor General Tony Powell, representing the state, told the court that last year's vote “doesn't matter” and shouldn't factor into its decisions on the two lawsuits, arguing that voters might not have wanted abortion banned but still favor “reasonable” restrictions. He said the justices should “let the people work it out” through their elected representatives.
Powell told reporters afterward: “The court is in the best position to remedy any mistakes that it made.”
Five of the six justices present for the arguments expressed skepticism while questioning Powell, who at one point said, “I’m doing the best I can.”
“We had a vote in August, and it was pretty overwhelming,” Justice Dan Biles told him. “That’s the elephant in the room.”
The justices did ask Alice Wang, a Center for Reproductive Rights attorney representing the abortion providers, whether preserving life was a compelling state interest. She said that question was before the state Supreme Court when it ruled in 2019.
“This court declined to recognize any compelling interest," Wang said.
Kansas allows most abortions until the 22nd week of pregnancy, attracting patients from other states with bans, most notably Missouri, Oklahoma and Texas. Abortion rights opponents fear that Kansas courts will overturn many of the restrictions imposed over the past 30 years.
The state is asking the state Supreme Court to overturn its 2019 decision, but the two cases also give the court the chance to narrow that ruling's scope by upholding either or both laws.
Many Republicans had expected Kansas voters to approve the proposed state constitutional change in August, and Powell acknowledged that he was “boxed in” by the state's failure to challenge much of the evidence presented by abortion providers to the trial court judge.
Powell repeatedly argued that the justices also ought to consider federal court decisions or even decisions from other states’ courts.
“I think the court should have its blinders off,” he said.
Among Republican-leaning states, Kansas is an outlier in preserving abortion access, in part because the state's abortion opponents preferred making year-by-year incremental changes prior to last year's U.S. Supreme Court ruling.
However, the state still forces patients to wait 24 hours before getting an abortion, requires minors to get parental consent, spells out what patients must be told in writing beforehand and even mandates that the information for patients be printed in 12-point Times New Roman type.
Three members of the court's 6-1 majority retired after the 2019 decision, but their replacements all were appointed by Democratic Gov. Laura Kelly, a strong abortion rights supporter. One of the new justices, K.J. Wall, recused himself from the cases, so six justices will decide them. The court did not give a reason for Wall's action.
The 2019 ruling came in the early stages of the lawsuit over the ban on the second-trimester procedure. The justices kept the law on hold but sent the case back to the trial court to examine the ban further. A trial judge said the law could not stand.
The law deals with a certain type of dilation and evacuation, or D&E, procedure. According to state health department statistics, about 500 D&E procedures are done in Kansas each year, accounting for 6% of the state's total abortions. About 90% of the state's abortions occur in the first trimester.
A D&E procedure ban would force providers to use alternative methods that the Center for Reproductive Rights, an abortion rights advocate, has said are riskier for the patient and more expensive. Biles hit on that argument repeatedly during Monday's hearing.
Abortion providers saw the law requiring them to comply with stricter regulations than other types than of doctors as an attempt to regulate them out of business. Before it was set to take effect in July 2011, it appeared briefly that no Kansas provider would be able to comply, though a Kansas City-area Planned Parenthood clinic ultimately did. A trial court judge ruled that the state had no justification for rules applying only to abortion providers, and the state appealed.
Those behind the clinic regulation law argued that it would make clinics safer for women seeking abortions. Several justices were skeptical that the state has a compelling reason to treat abortion clinics differently than other health care providers.
The state's argument for banning the second-trimester procedure was summed up in how they wrote the law. It specifically would prohibit doctors from using forceps or similar instruments on a live fetus to remove it from the womb in pieces. Such instruments are used in some D&E abortions.
Although Powell derided the specific method as “heinous,” Biles told him that there is no evidence in the record that it is worse for the fetus than the alternatives.
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