Kansas Supreme Court Strikes Down 2 Anti-Abortion Bills, Strengthening State’s Right to Abortion Access, ET HealthWorld

Topeka: The Kansas Supreme Court on Friday struck down state laws that regulated abortion facilities more stringently than other medical professions and a ban on the common procedure during the second trimester of pregnancy, reaffirming its position that the state constitution protects access to abortion.

“We maintain our conclusion that Section 1 of the Kansas Constitutional Rights Act protects the fundamental right to personal autonomy, which includes the right of a pregnant person to terminate her pregnancy,” Justice Eric Rosen wrote for the majority in striking down the ban on a type of dilation and evacuation, also known as D&E.

In striking down the clinical regulation law, the panel found that the state had not met its “burden of proof to show that the challenged laws advance its interests in protecting maternal health and regulating the medical profession with respect to maternal health.”

The 5-to-1 rulings by the Kansas Supreme Court in two separate cases signal that the state’s Republican-controlled Legislature faces tougher restrictions on regulating abortion than GOP lawmakers thought, and suggest that other restrictions could be struck down. Lawsuits in lower state courts are already challenging restrictions on medication abortions, a ban on doctors using teleconferencing to meet with patients, rules on what doctors must tell patients before an abortion and a requirement that patients wait 24 hours after being told about the procedure to terminate a pregnancy.

Judge KJ Wall did not participate in either ruling Friday, and Judge Caleb Stegall was the lone dissenting judge.

In his dissenting opinion on the clinic regulations, Stegall said the majority’s actions would damage the court’s legitimacy “for years to come.” He said the declaration that the state constitution protects the right to bodily autonomy could affect a “vast range” of health and safety laws beyond abortion, including licensing requirements for hairdressers.

“The government certainly has no compelling interest in who trims my beard?” Stegall wrote. “Let the lawsuits begin in this new, target-rich environment. Most have—perhaps unwittingly—exposed the entire administrative state to the test of tight control.”

Stegall, who was appointed by conservative Republican Gov. Sam Brownback, is widely considered the court’s most conservative member.

The Kansas Supreme Court ruled in a 2019 ruling that access to abortion is a matter of bodily autonomy and a “fundamental” right under the state constitution. Voters in August 2022 also overwhelmingly rejected a proposed amendment that would have explicitly declared abortion a nonfundamental right and allowed state lawmakers to significantly restrict or ban it.

Lawyers for the state had urged the justices to reverse their 2019 ruling and uphold two laws that have not yet been enforced because of legal battles over them. The state’s attorney general, appointed by Republican Attorney General Kris Kobach, argued that the 2022 vote is irrelevant to determining whether the laws can stand.

The court disagreed with that opinion and awarded abortion rights supporters a major legal victory.

Kansas has become an outlier among states with Republican-controlled legislatures since the U.S. Supreme Court issued its Dobbs ruling in June 2022, allowing states to ban abortions outright. That has led to an influx of patients from states with more restrictive laws, notably Oklahoma and Texas. The Guttmacher Institute, which supports abortion rights, forecast last month that Kansas would have about 20,000 abortions in 2023, up 152% from 2020.

Kansas does not ban most abortions up to 22 weeks of pregnancy, but it does require minors to get written consent from a parent or guardian. Other requirements, including a 24-hour waiting period and what providers must tell patients, have been suspended. A lower court is considering a challenge by providers.

Abortion opponents argued before the August 2022 vote that not changing the state constitution would doom long-standing restrictions put in place by previous GOP governors. Kansas saw a rash of new restrictions under former Republican Gov. Sam Brownback from 2011 to 2018.

Health and safety regulations specifically targeting abortion providers were passed in 2011. Supporters said they would protect women’s health — although no evidence was presented at the time documenting that such laws in other states had led to better health outcomes. Abortion providers said the real goal was to force them out of business.

The ban on certain types of D&E procedures in the second trimester of pregnancy was the first of its kind, introduced in 2015.

In 2022, about 600 D&E procedures were performed in Kansas, accounting for 5% of all abortions in the state, according to state health department statistics. About 88% of abortions in the state occurred in the first trimester. The state has not yet released statistics for 2023.

A ban on the procedures would force doctors to use alternative methods, which the Center for Reproductive Rights, an abortion rights group, says are riskier for the patient and more expensive.

The 2019 ruling came early in the legal process over the 2015 ban. Judges stayed the law but sent the case back to a trial court for further review of the ban. The trial judge said the law could not stand.

Three of the court’s seven justices have joined the court since the 2019 decision. All three were appointed by Democratic Gov. Laura Kelly, a strong supporter of abortion rights, but one of them — Wall — has recused himself from the cases.