Kansas abortion clinic law ruled unconstitutional by state Supreme Court

AUTHOR: TIM CARPENTER, Kansas Reflector

TOPEKA — Abortion clinic regulations passed years ago by the Kansas Legislature and Gov. Sam Brownback were ruled unconstitutional Friday by the Kansas Supreme Court in an opinion affirming the majority’s belief that the state Bill of Rights guarantees the right to terminate a pregnancy.

The Supreme Court majority used the regulation case to buttress its 2019 decision finding that women have a fundamental right to bodily autonomy and abortion services under Section 1 of the Kansas Constitution’s Bill of Rights. The high court issued a separate opinion Friday that invalidated the ban on a specific abortion procedure.

The Supreme Court majority agreed with a Shawnee County District Court judge’s ruling in a regulatory case that the Kansas attorney general’s office had failed to show benefits to maternal health or the medical profession from the abortion clinic licensing law that went beyond what was mandated for other medical facilities. The controversial statute intruded on every aspect of abortion facilities, including staffing, procedures, equipment and the physical environment.

Judge Melissa Standridge, who authored the 5-1 majority opinion, found that the attorney general’s office had not discharged its burden of showing that the regulatory framework adopted in 2011 and 2015 protects a compelling state interest characterized as critically important, potentially urgent and rare.

“Our position is supported by uncontested evidence in the record that flatly contradicts — in the case of many provisions — the State’s claims that the provisions advance identified compelling State interests,” wrote Standridge, an appointee of Democratic Gov. Laura Kelly. “Without that evidence, the challenged laws do not stand up to strict scrutiny and are constitutionally weak.”

Haircut, nudity?

Standridge’s opinion to undo Brownback-era abortion laws, in which Justices Evelyn Wilson, Eric Rose, and Dan Biles dissented, affirmed a lower court ruling in favor of two abortion doctors who had filed suit. Significantly, no part of the abortion regulation law survived the challenge, despite the inclusion of a savior clause that hypothetically could have preserved constitutional elements in an otherwise flawed law.

Justice K.J. Wall recused himself, but Justice Caleb Stegall repeated in his dissent the finding that “unrestricted access to abortion” in Kansas was the Supreme Court’s preferred judicial policy. As such, he wrote, “judicial coherence and consistency” would be sacrificed for the sake of policy. In his dissent, he dismissed the legal arguments of several peers.

“This court’s betrayal of its promise of neutral, uniform, and rational constitutional adjudication is as far-reaching as it is audacious,” Stegall wrote. “Its damaging impact on the institution’s legitimacy will be felt for years to come.”

Stegall theorized that establishing a fundamental right to personal autonomy over abortion would threaten regulations on food supplies, restaurants, drug use, tattoos and piercings, seat belts in cars, hairdressing, student vaccinations, assisted suicide, and public nudity.

“What about the right to cut and style my hair?” Stegall asked. “The government has no business being the one who trims my beard?”

Standridge used her majority opinion to condemn Stegall’s “false alarm” that the constitutional violation standard for abortion rights cases would result in lawsuits tied to ideas of personal autonomy. The standard was adopted five years ago, and predictions of countless regulatory challenges have yet to materialize, she said.

“The objection trivializes and attempts to minimize the fundamental nature of a woman’s decision to continue or terminate a pregnancy by comparing it to a man’s decision to grow or trim a beard,” Standridge wrote. “This facetious comparison is both inappropriate and demeaning to women who face the choice between childbirth and abortion.”

History of abortion

In 2011, Brownback signed a GOP-inspired bill, Senate Bill 36, to greatly expand licensing requirements for abortion clinics and establish stiff penalties for violators. In Topeka, a district court judge issued a temporary injunction blocking the implementation. In 2015, the Legislature and Brownback changed abortion law to persuade the district court to overturn the injunction.

Meanwhile, the Supreme Court issued a 2019 ruling that abortion access is an inalienable natural right. It is tied to personal autonomy and includes a woman’s right to terminate her pregnancy. Based on the Supreme Court’s guidance, the district court found the state’s abortion clinic regulations unconstitutional. The judge granted summary judgment to the plaintiffs, abortion providers Traci Lynn Nauser and Herbert Hodes.

In August 2022, amid a legal battle over clinic regulation, Kansas voters rejected a proposed amendment to the state constitution that would have invalidated the Supreme Court’s interpretation of the constitutional right to abortion.

Danielle Underwood, a spokeswoman for the anti-abortion lobbying group Kansans For Life, said the Supreme Court has made abortion clinics less safe for patients.

“The extremely liberal justices of the Kansas Supreme Court have now enacted basic health and safety standards for abortion facilities,” Underwood said. “It hurts to hear many Kansans who were misled by assurances from the abortion industry that it would continue to be ‘highly regulated’ in our state say, ‘We told you so.’”

Regulations

This abortion regulation lawsuit included a set of restrictions that increased the cost of services and delayed a patient’s ability to receive care. One section of the law established recovery restrictions so that patients had to stay twice as long as was medically necessary and delayed a patient’s ability to receive an abortion because fewer cases could be scheduled in a given day.

Healthcare workers were required to monitor patients’ vital signs during abortion procedures, even when no anesthesia was used. Regulations required a nursing station with visual observation of each patient in postoperative areas.

Another regulation said a doctor performing a pelvic exam must be accompanied by another person, even if the doctor performing the exam is a woman. The law required abortion facilities to provide the Kansas Department of Health and Environment with access to medical records, including patient-identifying information.

“They are creating an additional program specifically for abortion care,” said Caroline Sacerdote, an attorney with the Center for Reproductive Rights who represented the plaintiffs.

In written motions and oral arguments, attorneys for the state argued there was no constitutional violation because the law does not constitute an absolute ban on abortion.

“These regulations, while they may have some inconveniences, ultimately do not limit a woman’s ability to obtain an abortion,” said Anthony Powell, acting attorney general under Attorney General Kris Kobach.