Kansas' highest court is considering whether the state can restrict how doctors end second-trimester pregnancies or impose extra health and safety rules for abortion providers after a decisive statewide vote last year confirming that the state constitution protects abortion rights.
The state Supreme Court is set to hear arguments Monday from attorneys for the state and abortion providers in two lawsuits. One challenges a 2015 law banning a common second-trimester abortion procedure, and the other challenges a 2011 law that regulates abortion providers more strictly than other health care providers. Legal challenges have blocked both laws from being enforced.
The U.S. Supreme Court declared in June 2022 that the U.S. Constitution doesn't protect abortion rights and that states can ban abortion, but the Kansas court ruled in 2019 that access to abortion is a “fundamental” right under the state constitution. That led the Republican-controlled Legislature to put a proposed amendment on last August's ballot asking voters whether to lift that constitutional protection, which would have allowed lawmakers to greatly restrict or ban abortion. Voters soundly rejected the measure, though.
Kansas allows most abortions up until the 22nd week of pregnancy, attracting patients from other states with bans, most notably Missouri, Oklahoma and Texas. Abortion opponents fear that Kansas courts will overturn many of the restrictions imposed over the past 30 years. But they also see the two cases before the state's highest court as an opportunity for its seven justices to reconsider the 2019 decision or at least narrow its scope.
“There’s no way to know what they’re going to do, but quite frankly, I think there’s a reason for them to back off,” Kansas House Speaker Dan Hawkins, a Wichita Republican who opposes abortion rights, said before the hearings.
The court will likely take months to issue rulings.
Among Republican-leaning states, Kansas is an outlier in preserving abortion access, in part because the state's abortion opponents preferred making year-by-year incremental changes prior to last year's U.S. Supreme Court ruling.
However, the state still forces patients to wait 24 hours before getting an abortion, requires minors to get parental consent, spells out what patients must be told in writing beforehand and even mandates that the information for patients be printed in 12-point Times New Roman type.
Three members of the court's 6-1 majority retired after the 2019 decision, but their replacements all were appointed by Democratic Gov. Laura Kelly, a strong abortion rights supporter.
“The court was clear before, and they did a really comprehensive analysis of the state constitution,” said Emily Wales, president and CEO of Planned Parenthood Great Plains, which operates three of Kansas' six clinics that provide abortions.
She added: “I’d much rather be on the abortion rights side.”
The 2019 state Supreme Court ruling came in the early stages of the lawsuit over the ban on the second-trimester procedure. The justices kept the law on hold but sent the case back to the trial court to examine the ban further. A trial judge said the law could not stand.
The law deals with a certain type of dilation and evacuation, or D&E, procedure. According to state health department statistics, about 500 D&E procedures are done in Kansas each year, accounting for 6% of the state's total abortions. About 90% of the state's abortions occur in the first trimester.
A D&E procedure ban would force providers to use alternative methods that the Center for Reproductive Rights, an abortion rights advocate, has said are riskier for the patient and more expensive.
Abortion providers saw the law requiring them to comply with stricter regulations than other types than of doctors as an attempt to regulate them out of business. Before it was set to take effect in July 2011, it appeared briefly that no Kansas provider would be able to comply, though a Kansas City-area Planned Parenthood clinic ultimately did. A trial court judge ruled that the state had no justification for rules applying only to abortion providers, and the state appealed.
“The court needs to be objective and they need to do what they need to do,” said state Rep. Stephanie Clayton, a Kansas City-area Democrat. “But obviously, I hope that we have victories for privacy and bodily autonomy and choice in the state.”
Those behind the clinic regulation law argued that it would make clinics safer for women seeking abortions.
Their argument for banning the second-trimester procedure was summed up in how they wrote the law. It specifically would prohibit doctors from using forceps or similar instruments on a live fetus to remove it from the womb in pieces. Such instruments are used in some D&E abortions.
“Absolutely, we are we are hoping that the Kansas Supreme Court will realize that it went too far,” said Jeanne Gawdun, lobbyist for Kansans for Life, the most influential anti-abortion group at the Kansas Statehouse and a key player within the state GOP.