Kansas Supreme Court strengthens a state’s right to abortion and overturns two anti-abortion laws

By JOHN HANNA – AP political journalist

TOPEKA, Kansas (AP) — Kansas’ highest court on Friday strongly affirmed that the state constitution protects access to abortion, striking down a ban on a common procedure in the second trimester and overturning laws that regulate abortion providers more strictly than other health care providers.

The two 5-1 decisions suggest that other restrictions – even those that have been in place for decades – may not withstand legal challenges. The court’s dissenting judge, widely considered the most conservative, warned that Kansas is heading toward “a legal system of unfettered access to abortion.”

“This is an immense victory for the health, safety and dignity of the people of Kansas and the entire Midwest region, where millions of people have been denied access to abortion,” said Nancy Northup, president and CEO of the Center for Reproductive Rights, which represented the abortion providers fighting the two laws.

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The decisions came nearly two years after a statewide vote in August 2022 that decisively affirmed abortion rights. It was the first such vote since the U.S. Supreme Court’s Dobbs decision in June 2022 that allowed states to ban abortions entirely. Kansas voters rejected a proposed amendment to the state constitution approved by the Republican-dominated legislature saying the document does not grant a right to abortion.

The office of Republican Attorney General Kris Kobach had argued that the 2022 vote would not matter in deciding whether the two laws could stand. But Judge Evelyn Wilson, one of three justices appointed to the seven-member court after the court’s landmark decision in 2019, said that while she may have disagreed then, “the people have spoken with their voices.”

“The results were accepted by the people and Kansas has shown the world how things work in a successful democracy,” wrote Wilson, a congressman appointed by Democratic Gov. Laura Kelly, a staunch supporter of abortion rights.

None of the laws overturned by the court were enforced as a result of lawsuits brought against them by abortion providers.

Other lawsuits in lower state courts involve restrictions on medication abortion, a ban on doctors seeing patients by telephone conference, regulations on what doctors must tell their patients before an abortion, and a requirement that patients wait 24 hours after being informed about a possible abortion.

Friday’s rulings will be felt far beyond Kansas, as they have drawn thousands of patients from states where abortion is virtually banned, most notably Oklahoma and Texas. The Guttmacher Institute, which advocates for abortion rights, predicted last month that about 20,000 abortions would be performed in Kansas in 2023, up 152% from 2020.

Abortion opponents argued ahead of the August 2022 vote that a failure to amend the state constitution would derail long-standing restrictions under previous Republican governors. Kansas saw a spate of new restrictions from 2011 to 2018 under Republican Governor Sam Brownback.

“It hurts to have to say, ‘We told you so,’ to the many Kansas residents who were misled by the abortion industry’s assurances that there would still be ‘strong regulations’ in our state even if voters rejected the 2022 amendment,” Danielle Underwood, a spokeswoman for Kansans for Life, the state’s most influential anti-abortion group, said in a statement.

Judge KJ Wall, a Kelly appointee, did not participate in any of Friday’s rulings, while Judge Caleb Stegall, appointed by Brownback, was the only one to vote against.

In his dissent in the clinic regulations case, Stegall said the majority’s actions would damage the court’s legitimacy “for years to come.” He said its statements on bodily autonomy could affect a “wide swath” of health and safety regulations outside of abortion, including licensing requirements for hair salons.

“Surely the government has no compelling interest in who trims my beard,” Stegall wrote. “Let the litigation begin in this new, target-rich environment. The majority has – perhaps unwittingly – put the entire administrative state under scrutiny.”

Judge Melissa Standridge, also a Kelly appointee and the judge who wrote the majority opinion in the clinic regulations case, called Stegall’s comments “inappropriate and demeaning to women who are faced with the decision between having a child and having an abortion.”

Kansas bans most abortions until 22 weeks of pregnancy, but requires minors to have written consent from their parents or guardians. Other requirements, including the 24-hour waiting period and what a doctor must tell patients, have been put on hold. A lower court is considering challenging those requirements from doctors.

The health and safety rules, aimed specifically at abortion providers, were enacted in 2011. Proponents said they would protect women’s health – even though there was no evidence at the time that such rules had led to better health outcomes elsewhere. Providers said the real goal was to put them out of business.

Standridge said in the majority opinion on hospital regulations that not only is there no evidence that the regulations improve patient health, but that in some cases they “positively contradict” that position.

She wrote that even the state’s expert witness in the case agreed that “existing abortion care is extremely safe” and comparable to care not covered by the regulations.

The other law overturned by the court would have banned a certain type of dilation and evacuation, also known as D&E. It was the first state ban of its kind when it went into effect in 2015.

According to statistics from the state Department of Health, about 600 D&E procedures were performed in Kansas in 2022, representing 5% of all abortions in the state. About 88% of the state’s abortions occurred in the first trimester. The state has not yet released statistics for 2023.

Banning the procedure would have forced providers to resort to alternative methods that, according to the Center for Reproductive Rights, are riskier and more expensive for patients.

Judge Eric Rosen, a judge appointed by former Democratic Gov. Kathleen Sebelius, said in the majority opinion on the ban that lower court evidence showed it would force patients to undergo alternative procedures “that are rarely used, untested and sometimes more dangerous or impossible.”

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