Kansas Supreme Court Strikes Down State Abortion Laws

TOPEKA, Kan. — The Kansas Supreme Court on Friday struck down a pair of state laws regulating abortion, affirming that there’s a fundamental right under the state constitution for a woman to terminate her pregnancy.

Both decisions were rendered in 5-1 rulings. In the first, the court majority declared that a state law that regulated abortion providers more strictly than other health care professionals was unconstitutional.

In the second case, the same majority overturned a state ban on a common second-trimester procedure, a D&E, or dilation and evacuation.

“We stand by our conclusion that section 1 of the Kansas Constitution Bill of Rights protects a fundamental right to personal autonomy, which includes a pregnant person’s right to terminate a pregnancy,” Justice Eric Rosen wrote for the majority in the second case.

Rosen, an appointee of Democratic Gov. Kathleen Sebelius, went on to write,  “In short, S.B. 95 does not further patient safety. It compromises patient safety. 

“As the district court found and the state did not contest, SB 95 eliminates a safe and common medical procedure and leaves patients subject to procedures that are rarely used, are untested and are sometimes more dangerous or impossible,” he added.

The Kansas legislature passed the Kansas Unborn Child Protection from Dismemberment Abortion Act by large majorities in both chambers in 2015, and then Gov. Sam Brownback, a Republican, quickly signed it into law.

Though the law banned the D & E procedure, it did include an exemption to save the life of a pregnant woman facing substantial and irreversible medical impairment.

Before the law went into effect, however, two physicians who performed the procedure, Herbert Hodes and Traci Lynn Nauser, sued the state seeking to prevent the law’s enforcement.

A state district court judge sided with the doctors, but on appeal, the Kansas Court of Appeals split evenly on the question of whether the Kansas Constitution protected a right to abortion. This eventually led to the case being taken up by the state supreme court, which upheld the lower court finding.

In the meantime, the U.S. Supreme Court decided Dobbs v. Jackson Women’s Health Organization, the landmark case in which a majority of justices held that the U.S. Constitution does not protect abortion rights and that the question of the legality of abortion should be decided by the individual states.

In the wake of that decision, in August 2022, Kansas voters rejected 59% to 41% a proposed state constitutional amendment that would have established there was no “right to abortion” in Kansas.

Justice K.J. Wall did not participate in either ruling on Friday while Justice Caleb Stegall, widely regarded as the court’s most conservative current member, was the lone dissenter.

In his dissenting opinion in the clinic regulations case, Stegall warned that the majority’s decision will damage the court’s legitimacy “for years to come.” 

He also said he feared the ruling would impact a “massive swath” of health and safety regulations outside abortion, including licensing requirements for barbers.

“Surely the government does not have a compelling interest in who trims my beard?” Stegall wrote. “Let the lawsuits commence in this new target-rich environment. The majority has — perhaps unwittingly — put the entire administrative state on the chopping block of strict scrutiny.”
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