The state of Kansas is asking the state’s highest court to review last month’s decision by the Kansas Court of Appeals finding that the Kansas Constitution creates a “fundamental right to abortion.”
The request for the Kansas Supreme Court to take up the case was expected after the court of appeals upheld a lower court decision blocking a Kansas law that bans the abortion procedure known as dilation and evacuation. The measure was signed into law by Gov. Sam Brownback in April 2015 and was set to take effect on July 1, 2015.
Kansas was the first state in the nation to prohibit the procedure, which is the most commonly used method for second-trimester abortions. Oklahoma passed a similar ban shortly afterward.
The Kansas ban was challenged by two Overland Park physicians, Dr. Herbert Hodes and his daughter, Dr. Traci Lynn Nauser. Their practice is one of only three abortion providers in the state.
Last July, Shawnee County District Judge Larry D. Hendricks found in their favor and blocked the law from taking effect. Hendricks ruled that the Kansas Bill of Rights “independently protects the fundamental right to abortion.”
The court of appeals, in a highly unusual decision on Jan. 22 involving all 14 sitting judges, upheld Hendricks in a split 7-7 vote. When an appeals court is equally divided, the trial court’s ruling is upheld.
The appeals court’s ruling marked the first time a Kansas appellate court had based the right to an abortion in the Kansas Constitution.
Six of the appeals court judges found that the first two sections of the Kansas Constitution’s Bill of Rights mirror those in the due process clause of the U.S. Constitution's Fourteenth Amendment. A seventh judge found that section 1 created a “natural law” protection broader than that provided by federal law.
In its appeal to the Kansas Supreme Court, the state argues that “(w)hether the Kansas Constitution creates a right to an abortion is a fundamental and compelling constitutional question of first impression, a question that can only be resolved definitively by this court.”
Dan Margolies, editor of the Heartland Health Monitor team, is based at KCUR. You can reach him on Twitter @DanMargolies.