Kansas Supreme Court strikes down abortion ban, clinic regulations

TOPEKA, Kan. (OSV News) — In separate rulings, the Kansas Supreme Court on July 5 struck down a ban on a second-trimester surgical abortion procedure known as dilation and evacuation, or D&E, and also invalidated a series of regulations governing abortion clinics that abortion providers had long opposed.

A state high court ruled that in both cases the laws violated a section of the Kansas Constitution that guarantees equal rights.

The abortion procedure decision was reached 5-1, with one of the seven judges, Judge Keynen “KJ” Wall, not participating. It leaves in place a lower court order blocking the law, which was passed in 2015.

But before the law took effect, the Center for Reproductive Rights filed a lawsuit challenging the 2015 law on behalf of two Kansas doctors who said they had been safely performing D&E procedures for decades and argued that the ban violated a woman’s right to an abortion protected by the Kansas Bill of Rights in the Constitution.

Writing for the majority, Justice Eric S. Rosen said the Constitution’s Bill of Rights “includes the right of a pregnant person to terminate her pregnancy.”

Also known as the Kansas Unborn Child Protection from Dismemberment Abortion Act, Kansas Senate Bill 95 was passed by the Kansas Legislature in 2015 and signed into law by Republican Governor Sam Brownback on April 7, 2015. Under the law, the D&E procedure, described by pro-life advocates as “dismemberment,” was permitted when necessary to protect the life or health of the mother. It was the first ban on the procedure in the nation.

Before signing the bill, Brownback, a Catholic, called the second-trimester procedure “a graphic reminder of how awful abortion is. In the United States, abortions are now performed where you dismember an unborn baby and then pull it out.”

Judge Caleb Stegall, a Brownback appointee, said in his July 5 dissenting opinion: “It is worth noting that the majority cannot bring itself to recognize a compelling government interest in unborn human life.” He also noted that “pregnant women have been quietly — decisively — thrown out of this court’s abortion jurisdiction. Replaced, it seems, by the asexual ‘pregnant persons’ and ‘pregnant patients.’”

The second Kansas Supreme Court ruling concerned Brownback-era regulations governing abortion clinics, which were first passed by the Legislature in 2011 and regulated staffing, procedures, equipment and the physical environment. A lawsuit challenging the regulations was filed the same year.

For example, the regulations required medication abortions to be physically administered by a doctor in the same room as the patient, as opposed to being administered to the patient via telemedicine. They established minimum recovery times for patients and set inspection requirements for clinics that critics said went beyond what was expected of other health care facilities.

With respect to these regulations, Kansas has not shown that it has a “compelling interest in protecting maternal health and regulating the medical profession with respect to maternal health,” Justice Melissa Taylor Stanbridge wrote for the majority in a 5-1 opinion invalidating the 2011 clinical regulations. Stegall was the lone dissenter, and Wall did not participate.

In a statement to OSV News on July 10, Lucrecia Nold, policy specialist at the Kansas Catholic Conference, said, “This ruling was expected, but it is disappointing nonetheless. The abortion industry and its insidious death march in Kansas and elsewhere is an attack on our culture, and it targets women giving birth.”

“We will continue to support pregnancy resource centers and other educational and legislative efforts,” Nold added. The state Catholic conference is the public policy arm of the state’s bishops.

“Adding insult to injury, the extremely liberal justices of the Kansas Supreme Court have now enacted basic health and safety standards for abortion facilities,” Danielle Underwood, a spokeswoman for Kansans for Life, said in a July 5 statement. “It hurts to say: ‘We’ve told’ many Kansans who have been misled by the abortion industry’s assurances that it will continue to be ‘heavily regulated’ in our state if voters reject the 2022 amendment.”

Kansas voters in 2022 rejected a measure that would have stripped existing abortion protections from the state constitution, the first referendum on the issue following the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization this year, which overturned earlier high court rulings that declared abortion access a constitutional right.

Following the Dobbs decision, Catholic Church leaders in the United States reiterated that the church cares for both mothers and children and called for more financial or other practical assistance to address the issues that may lead women to seek abortions.

A new abortion law took effect in Kansas on July 1. On April 30, the legislature rejected four vetoed bills, but one of them was challenged in court: a law requiring health care providers to ask women to anonymously provide the primary reason they want an abortion in order to compile a record for the state health agency.

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