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Kansas Supreme Court reaffirms abortion rights are protected by constitution, striking down 2 laws

Kansas Supreme Court Justice Melissa Taylor Standridge asks for clarification on a statement made by Kansas Solicitor General Anthony Powell during Monday's Hodes & Nauser v. Stanek case. (Pool Photo by Evert Nelson/The Capital-Journal)
Evert Nelson
Pool photo by the Topeka Capital-Journal
Kansas Supreme Court justices listen to oral arguments in March 2023.

In two 5-1 opinions, the court built on a 2019 decision in which it said the state’s Constitution protects abortion rights and that lawmakers seeking to restrict abortion must meet a high “strict scrutiny” test. The decisions cement Kansas' role as a key abortion access point for patients across the broader region.

The Kansas Supreme Court struck down two laws restricting abortion on Friday, affirming its prior interpretation that ending a pregnancy remains a constitutionally protected right in Kansas.

In two 5-1 opinions, the court built on a 2019 decision in which it said the state’s Constitution protects abortion rights and lawmakers seeking to restrict abortion must meet a high “strict scrutiny” test. When Republican lawmakers asked voters, in 2022, to amend the constitution to stipulate that it does not protect abortion rights, Kansans overwhelmingly declined to do so.

“We stand by our conclusion that section 1 of the Kansas Constitution Bill of Rights protects a fundamental right to personal autonomy, which includes a pregnant person’s right to terminate a pregnancy,” wrote Justice Eric Rosen in one of the majority opinions.

A decision against abortion providers would have been monumental, not only for Kansans but for the thousands of women across the region who now travel to Kansas each year to get abortions that have been banned in their home states. A large majority of patients at Kansas abortion clinics now come from Missouri, Oklahoma, Texas and farther afield.

The court’s majority upheld lower court rulings that two laws restricting abortion — passed several years ago by Republican-controlled Kansas Legislature — were unconstitutional. One law, passed in 2015, banned an abortion method frequently used in second-trimester abortions called ‘dilation and evacuation.’ The second law, passed in 2011, imposed licensure restrictions on doctors who provide abortions that exceeded those imposed on other medical providers.

Neither law had been in effect because of permanent injunctions by lower courts.

In his decision striking down the dilation and evacuation ban, Rosen wrote that the State of Kansas does have a compelling interest in “promoting respect for the value and dignity of human life, born or unborn” but said that the law is not narrowly tailored to that interest.

The clinic restrictions “do not survive strict scrutiny and are constitutionally infirm,” Justice Standridge concluded in the second majority opinion.

The decisions were both 5-1, with Justice Caleb Stegall — the only justice to dissent from the 2019 decision — dissenting and Justice Keynen Wall not participating in the decision.

Stegall wrote that he dissented from the Friday opinions for the same reasons he dissented in 2019.

“The majority’s imagined section 1 of the Kansas Constitution Bill of Rights bears no resemblance at all — in either law or history — to the actual text and original public meaning of section 1.”

Stegall also criticized the majority’s use of the term “pregnant person” instead of “women.”

“I cannot help but notice that pregnant women have been quietly — decisively — evicted from this court’s abortion jurisprudence,” he wrote.

The Center for Reproductive Rights represented the Kansas doctors who challenged the laws. Nancy Northup, the organization’s president and CEO, commended the court’s opinions.

“This is an immense victory for the health, safety, and dignity of people in Kansas and the entire Midwestern region, where millions have been cut off from abortion access,” Northup said in a news release. “We will continue our fight to ensure Kansans can access the essential healthcare they need in their home state.”

Kansans for Life, the state’s leading anti-abortion organization, rebuked the decisions.

“Adding insult to injury, extremely liberal judges of the Kansas Supreme Court have now overturned basic health and safety standards for abortion facilities,” KFL spokesperson Danielle Underwood said in a press release.

“It hurts to say, ‘we told you so,’ to the many Kansans who were misled by the abortion industry’s assurances that it would still be ‘heavily regulated’ in our state if voters rejected the 2022 amendment,” Underwood added.

Several new abortion laws took effect in Kansas earlier this week, but one of them — a law requiring doctors to ask patients getting abortions their reason for doing so — is being challenged in court. A Johnson County judge said Monday that doctors could add the law to a larger lawsuit they brought against a handful of older state abortion restrictions, including a 24-hour waiting period. The judge agreed to temporarily block the older laws while the case proceeds.

The Kansas Department of Health and Environment told providers it will “not, for now” enforce the abortion reasons law, providers said Monday. The health department has not responded to requests seeking to confirm that.

Rose Conlon is a reporter based at KMUW in Wichita, but serves as part of the Kansas News Service, a partnership of public radio stations across Kansas. She covers health, the social determinants of health and their connection to public policy.
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