In a sweeping decision, the Kansas Court of Appeals has ruled that the Kansas Constitution’s Bill of Rights provides a right to abortion and blocked a Kansas law banning the second-trimester abortion method known as “dilation and evacuation.”
The ruling represents a major victory for pro-abortion rights activists, who contended the ban increased the complexity and risk of second-trimester abortions. And it marks the first time a Kansas appellate court has found a right to abortion in the Kansas Constitution.
Signifying the importance of the case, all 14 judges on the court weighed in. The court split down the middle, with seven judges voting to uphold a lower court ruling temporarily blocking implementation of the Kansas ban and seven voting to reverse the lower court. When an appeals court is equally divided, the trial court’s ruling is upheld.
Kansas Attorney General Derek Schmidt said the state would request immediate review by the Kansas Supreme Court.
Writing for the faction voting to strike down the ban, Judge Steve A. Leben said that “(t)he rights of Kansas women in 2016 are not limited to those specifically intended by the men who drafted our state’s constitution in 1859.”
Leben also noted that Kansas has banned what’s known as the intact D&E abortion procedure since 1998. “By combining that ban with a new one on the D&E abortion procedure,” he wrote, “Kansas has simply attempted to do in two statutes what the United States Supreme Court held Nebraska could not do in one — ban both D&E and intact D&E abortions.”
Legislature approved ban in 2015
The case was brought last year by two Overland Park doctors — Herbert Hodes and his daughter, Dr. Traci Nauser — who operate one of three abortion clinics in Kansas. The pair challenged the D&E ban, which the Legislature enacted last year in approving Senate Bill 95.
Kansas Gov. Sam Brownback issued a statement saying he was “deeply disappointed in the court’s decision to allow dismemberment abortions of a living child to continue in the State of Kansas. The court’s failure to protect the basic human rights and dignity of the unborn is counter to Kansans’ sense of justice.”
“Seven judges have chosen to create law based upon their own preferences rather than apply the law justly and fairly,” the statement continued. “I support the Attorney General in his call on the Kansas Supreme Court for a swift decision protecting the unborn.”
Nancy Northup, president and CEO of the Center for Reproductive Rights, which represented Hodes and Nauser, said in a statement that the ruling was “a landmark victory for Kansas women, whose rights and health have been under siege for far too long.”
“The state Court of Appeals has rightly affirmed that Kansas women have the right to safely and legally end a pregnancy under their state constitution, free from political interference,” she said.
Planned Parenthood of Kansas and Mid-Missouri, which was not a party to the case but has been involved in other battles challenging Kansas abortion restrictions, issued a statement congratulating Hodes and Nauser.
“Their brave fight blocked enforcement of a medically dangerous ban on the safest, most commonly used form of second trimester abortion,” the statement said, calling the Kansas ban “an irresponsible attempt to restrict women’s access to safe, legal surgical abortions.”
D&E accounts for about 9 percent of all abortions in Kansas, although nearly all second-trimester abortions are performed using the procedure.
The Kansas ban allowed D&E in only three situations: where it was necessary to preserve the life of the mother, where the pregnancy’s continuation would cause the mother “substantial and irreversible” physical harm or where the fetus was already dead. Doctors found to violate the law were subject to criminal prosecution.
The law was based on model legislation from the National Right to Life Committee and was the first of its kind in the nation. Oklahoma passed an identical ban after Kansas, and other states, including Missouri, have considered similar bills.
The Oklahoma ban was also challenged and blocked by a lower court. The case is pending on appeal.
The challenge to the Kansas law was unusual in that it was based not on the U.S. Constitution and the U.S. Supreme Court’s landmark abortion decision, Roe v. Wade, but on the first two sections of the Kansas Constitution’s Bill of Rights.
Section 1 of the Kansas Bill of Rights provides, “All men are possessed of equal inalienable rights, among which are life, liberty, and the pursuit of happiness.” Section 2 provides, “All political power is inherent in the people, and all free governments are founded on their authority, and are instituted for their equal protection and benefit.”
In rooting the right to abortion in the Kansas Constitution, Leben said that the right to liberty “fits squarely within both the federal abortion-rights cases and the broader substantive-due process case law within which the federal constitutional right to abortion has taken form.”
In July, Shawnee County District Judge Larry D. Hendricks reached a similar conclusion when he issued a temporary injunction blocking the law from taking effect. Hendricks ruled that the Kansas Bill of Rights “independently protects the fundamental right to abortion.”
In his decision, Hendricks also determined that alternatives to D&E weren’t reasonable, “would force unwanted medical treatment on women, and in some instances would operate as a requirement that physicians experiment on women with known and unknown safety risks as a condition (of) accessing the fundamental right of abortion.”
The state appealed, arguing that the Kansas Constitution contains no reference to abortion and the Kansas Supreme Court has never recognized a state-law right to abortion. It also contended the law only banned one abortion method and other safe alternatives were available.
The full court of 14 judges heard oral arguments in December. Appeals are typically heard by a three-judge panel of the court.
Leben was joined in his opinion by five other judges. A sixth judge, G. Gordon Atcheson, wrote a separate concurring opinion.
Judge Tom Malone wrote a dissenting opinion joined by six other judges. In his dissent, Malone said that he would not find an independent state-law right to abortion in the Kansas Constitution.
“Based on this finding, and because the plaintiffs’ claims are brought solely under the Kansas Constitution, it follows that the plaintiffs have failed to establish a substantial likelihood of prevailing on the merits of their claims,” he wrote.