This story was updated at 3:39 p.m.
The Kansas Supreme Court has agreed to review an appeals court decision finding that the Kansas Constitution creates “a fundamental right to abortion.”
The decision by the high court was expected after the Kansas Court of Appeals, in an evenly divided vote, upheld a trial judge’s decision to block a Kansas law banning the second-trimester abortion method known as “dilation and evacuation.”
Seven appeals court judges in January voted to affirm the finding that the law was unconstitutional and seven voted to reverse. When an appeals court is equally divided, the trial court’s ruling is upheld. The state then asked for expedited review of the appeals court decision.
The ruling was a major victory for abortion rights advocates, who argued that the Kansas ban increases the complexity and risk of second-trimester abortions. The case marked the first time a Kansas appeals court had found a right to abortion in the Kansas Constitution.
In its request for review, the state said that the evenly divided decision demonstrated “the compelling need for resolution” by the Kansas Supreme Court.
The law, which was passed in 2015, was challenged by two Overland Park physicians, Herbert Hodes and his daughter, Traci Nauser, who operate one of three abortion clinics in Kansas.
Kansas is one of two states that ban the D&E procedure, by far the most common second-trimester abortion procedure. Oklahoma passed a similar law shortly after Gov. Sam Brownback signed the Kansas ban into law in April 2015.
The state argues federal case law allows it “to voice its profound respect for life and human dignity” by regulating or even limiting some abortion methods “that society finds inhumane and objectionable when safe alternatives exist.”
Opponents of the law say that it intrudes on the doctor-patient relationship and that the alternatives to D&E are invasive and medically unnecessary.
"I think the decision to review the case at this point is a recognition by the court that this challenge raises a really fundamental question, which is whether or not the Kansas Constitution protects the right to abortion and, if it does, what level of protection will women be able to get under the Constitution," said Janet Crepps, a lawyer with the Center for Reproductive Rights, which represented Hodes and Nauser.
The Kansas Supreme Court is not expected to issue its ruling until late this year or early next year.
Dan Margolies, editor of the Heartland Health Monitor team, is based at KCUR. You can reach him on Twitter @DanMargolies.
