TOPEKA, Kansas – Kansas' highest court on Friday reaffirmed that the state structure protects access to abortion, striking down a ban on a typical procedure within the second trimester and striking down laws that regulate abortion providers more strictly than other health care providers.
The two 5-1 decisions suggest that other restrictions – even those which were in place for many years – may not withstand legal challenges. The court's dissenting judge, widely considered essentially 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 difficult the 2 laws.
The decisions got here nearly two years after a statewide vote in August 2022 that clearly affirmed abortion rights. It was the primary such vote for the reason that 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 structure approved by the Republican-dominated legislature saying the document doesn’t grant a right to abortion.
The office of Republican Attorney General Kris Kobach had argued that the 2022 vote wouldn’t matter in deciding whether the 2 laws could stand. But Judge Evelyn Wilson, considered one of three justices appointed to the seven-member court after the court's landmark decision in 2019, said that while she can 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 in consequence 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 a few possible abortion.
Friday's rulings can be felt far beyond Kansas, as they’ve drawn hundreds 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 could 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 structure would derail long-standing restrictions under previous Republican governors. Kansas saw a spate of recent 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 press release.
Judge KJ Wall, a Kelly appointee, didn’t take part in any of Friday's rulings, while Judge Caleb Stegall, appointed by Brownback, was the just one to vote against.
In his dissent within the clinic regulations case, Stegall said the bulk'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 bulk opinion within 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 physician must tell patients, have been placed on hold. A lower court is considering difficult those requirements from doctors.
The health and safety rules, aimed specifically at abortion providers, were enacted in 2011. Proponents said they might protect women's health – although there was no evidence on the time that such rules had led to raised health outcomes elsewhere. Providers said the true goal was to place them out of business.
Standridge said in the bulk 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.
The other law overturned by the court would have banned a certain variety of dilation and evacuation, also referred to as D&E. It was the primary 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 within the state. About 88% of the state's abortions occurred in the primary trimester. The state has not yet released statistics for 2023.
Banning the procedure would have forced providers to resort to alternative methods that, in keeping with the Center for Reproductive Rights, are riskier and costlier for patients.
Judge Eric Rosen, a judge appointed by former Democratic Gov. Kathleen Sebelius, said in the bulk opinion on the ban that lower court evidence showed it could force patients to undergo alternative procedures “that are rarely used, untested and sometimes more dangerous or impossible.”
image credit : www.mercurynews.com