Kansas Supreme Court: The State Constitution Protects Abortion Rights
(This story was updated at 4:45 p.m.)
Kansas women have a fundamental right to abortion, the state’s Supreme Court ruled Friday — a decision that has 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.
It could also thwart other attempts by state lawmakers to limit access to abortion. Some conservative lawmakers immediately sounded alarms that other abortion restrictions already on the books could be in jeopardy, too.
Friday’s 87-page decision will turbo-charge efforts among conservatives in the Kansas Legislature to ban abortion in the 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 they 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 nearly unanimous 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.” 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 other laws limiting abortion access 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.
The Legislature’s deeply conservative Truth Caucus issued a news release warning the ruling could lead to other abortion laws in Kansas being tossed out by the courts.
“Even the most basic protections of the unborn are under threat,” state Sen. Ty Masterson, a Republican and chairman of the group, said in the release.
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 state 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 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 access to that type of abortion.
Scott, of 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 declared 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 abandons the original meaning of that part of the Bill of Rights, Stegall wrote, 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.
Stegall was appointed by conservative Republican Sam Brownback. Of the other six justices, four were appointed by Democrat Kathleen Sebelius. Two were put on the court by Republican Bill Graves, a moderate.
Nationally, more than 90 percent of abortions happen in the first trimester. The Guttmacher Institute says that in later abortions, women often struggled with logistics such as paying for the procedure earlier, or have trouble finding and traveling to an abortion provider.
The lawsuit filed by Hodes and Nauser was unusual because they didn’t base their case on the U.S. Constitution, but rather on the state constitution. The state countered that the 1859 Kansas Constitution couldn’t possibly include a right to abortion because abortion was largely illegal at the time it was drafted.
Shawnee County District Judge Larry D. Hendricks sided with the plaintiffs and blocked the law from taking effect. Hendricks ruled that the Kansas Bill of Rights “independently protects the fundamental right to abortion.”
He also said 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.”
The state appealed and, in a dramatic split, the 14 judges of the Kansas Court of Appeals divided 7-7, which had the effect of upholding the trial court.
Writing for the seven judges who agreed with the trial court, Judge Steve Leben said the “rights of Kansas women in 2016 are not limited to those specifically intended by the men who drafted our state’s constitution in 1859.”
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 reflected 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 but 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 with 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. Its executive director, Mary Kay Culp, said she believed such an amendment would be struck down by the courts. Instead, she said, the group would craft its own version if the Supreme Court found a constitutional right to abortion. On Friday, she told the Sunflower State Journal the group would push for an amendment in 2020.
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.