In what is certain to shape up as one of its most important decisions in years, the Kansas Supreme Court heard arguments Thursday morning on whether the Kansas Constitution’s Bill of Rights enshrines a right to abortion.
The case is on appeal from the Kansas Court of Appeals, which, in an evenly divided decision last year ruled that the state Constitution recognizes a “fundamental right to abortion.”
The appeals court affirmed a lower court decision by Shawnee County District Judge Larry Hendricks blocking a Kansas law banning the second-trimester abortion method known as “dilation and evacuation.” Hendricks found that the law imposes an “undue burden” on women seeking an abortion.
His decision marked the first time that a Kansas court had found a right to abortion rooted in the state Constitution – although the word “abortion” appears nowhere in the document.
Most appeals court cases are heard by three-judge panels. But in an indication of the importance of the case, all 14 judges on the appeals court weighed in, with seven voting to uphold Hendricks and seven voting to reverse him. When an appeals court is evenly divided, the lower court ruling stands.
Kansas Attorney General Derek Schmidt immediately requested review by the Kansas Supreme Court, setting the stage for Thursday’s oral arguments, which lasted more than two hours.
Arguing for the state that the Kansas Constitution does not recognize a right to abortion, Lawrence attorney and University of Kansas law professor Stephen McAllister told the judges that neither the text nor history of the document supports such a finding.
He warned that if the court were to open the door and find a right to abortion in the state Constitution, “it should remember what Roe v. Wade has brought to the federal courts. And what Roe v. Wade has brought to the federal courts is 44 years of contentious litigation, it seems to be never-ending, and now that would be invited into the state court system if there is a state constitutional right.”
Arguing on behalf of the two Overland Park physicians who challenged the law, Janet Crepps, an attorney with the Center for Reproductive Rights in New York, told the judges that the liberty and due process provisions of the Kansas Bill of Rights “protect core values of personal autonomy and decision-making about issues that affect one’s physical health, family life and the decision of whether to bear a child.”
“The right of Kansas women to terminate a pregnancy should be recognized and protected as a fundamental right,” Crepps said. “The act violates this right by banning the most common method of second- trimester abortion.
“And by imposing extreme and unreasonable alternatives that would subject women to more complex and risky – and in some instances, experimental – procedures, this is not a price that can be accepted on Kansas women seeking to exercise their right to second-trimester abortion.”
The challenge to the Kansas Unborn Child Protection from Dismemberment Abortion Act, as the law is known, was brought by two Overland Park doctors: Herbert Hodes and his daughter, Dr. Traci Nauser, operators of one of three abortion clinics in Kansas. The act, which the Legislature passed in 2015, prohibits dilation and evacuation abortions except when necessary to preserve the life of the mother or to prevent impairment of a major bodily function of the mother.
Supporters of the law commonly refer to the procedure as “dismemberment abortion.” Opponents of the law note that nearly all second-trimester abortions are performed using the procedure, which accounts for about 9 percent of abortions in Kansas.
The challenge was unusual in that it did not argue the law is illegal under the federal Constitution. Rather, Hodes and Nauser argued that Sections 1 and 2 of the Kansas Constitution’s Bill of Rights recognize a “fundamental right to abortion.”
Section 1 states that “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”
Section 2 states in part that “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.”
The case drew widespread interest, with numerous organizations weighing in on each side of the argument.
Filing friend-of-the-court briefs in support of the state were the Family Research Council, Kansans for Life, the American Association of Pro-Life Obstetricians and Gynecologists, the American College of Pediatricians and the Catholic Medical Association.
Filing friend-of-the-court briefs supporting Hodes and Nauser were the Constitutional Accountability Center, the American Civil Liberties Union of Kansas and the American College of Obstetricians and Gynecologists.
The court is expected to hand down its decision within the next few months.
Dan Margolies is KCUR’s health editor. You can reach him on Twitter @DanMargolies.
