Kansas' top court bolsters a state right to abortion and strikes down 2 anti-abortion laws

The rulings will be felt far outside Kansas since the state has attracted thousands of patients from states where abortion is all but banned.
Hundreds of abortion opponents march.
Posted at 2:10 PM, Jul 05, 2024

Kansas’ highest court strongly reaffirmed Friday that the state constitution protects abortion access, striking down a ban on a common second-trimester procedure and laws regulating abortion providers more strictly than other health care providers.

The pair of 5-1 decisions suggests that other restrictions — even ones decades on the books — might not withstand legal challenges. The court's dissenting justice, widely seen as its most conservative, warned that Kansas is headed toward “a legal regime of unrestricted access to abortion.”

“This is an immense victory for the health, safety, and dignity of people in Kansas and the entire Midwestern region, where millions have been cut off from abortion access,” said Nancy Northup, president and CEO of the Center for Reproductive Rights, which represented the abortion providers challenging the two laws.

The decisions came almost two years after an August 2022 statewide vote decisively affirmed abortion rights, the first such vote after the U.S. Supreme Court's Dobbs decision in June 2022 that allowed states to ban abortion altogether. Kansas voters rejected a proposed change in the state constitution approved by the Republican-controlled Legislature to declare that the document provides no right to abortion.

Related story: New anti-abortion laws go into effect in Kansas despite governor's veto

Republican Attorney General Kris Kobach's office had argued that the 2022 vote didn’t matter in determining whether the two laws could stand. But Justice Evelyn Wilson, one of three justices appointed to the seven-member court after its landmark 2019 decision, said that while she might have dissented then, “The people spoke with their votes.”

“The results were accepted by the people, and Kansas showed the world how things are done in a successful democracy,” wrote Wilson, an appointee of Democratic Gov. Laura Kelly, a strong abortion rights supporter.

Neither law struck down by the court had been enforced because of the lawsuits against them by abortion providers.

Other lawsuits in lower state courts are challenging restrictions on medication abortions, a ban on doctors using teleconferences to meet with patients, rules for what doctors must tell patients before an abortion and a requirement that patients wait 24 hours after receiving information about a procedure to terminate their pregnancies.

Friday's rulings will be felt far outside Kansas since it has attracted thousands of patients from states where abortion is all but banned, most notably Oklahoma and Texas. The Guttmacher Institute, which supports abortion rights, projected last month that about 20,000 abortions were performed in Kansas in 2023, or 152% more than in 2020.

Related story: In wake of Supreme Court ruling, Biden administration tells doctors to provide emergency abortions

Abortion opponents argued ahead of the August 2022 vote that failing to change the state constitution would doom long-standing restrictions enacted under past Republican governors. Kansas saw a flurry of new restrictions under GOP Gov. Sam Brownback from 2011 through 2018.

“It hurts to say, ‘We told you so,’ to the many Kansans who were misled by the abortion industry’s assurances that it would still be ‘heavily regulated’ in our state if voters rejected the 2022 amendment,” Danielle Underwood, a spokesperson for Kansans for Life, the state's most influential anti-abortion group, said in a statement.

Justice K.J. Wall, a Kelly appointee, did not participate in either ruling on Friday while Justice Caleb Stegall was the lone dissenter. He was appointed by Brownback.

In his dissenting opinion in the clinic regulations case, Stegall said the majority’s actions would damage the court’s legitimacy “for years to come.” He said its declarations about bodily autonomy could affect 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.”

Justice Melissa Standridge, also a Kelly appointee and the justice writing the majority opinion in the clinic regulations case, called Stegall's comments “inappropriate and denigrating to women faced with decisions between childbirth and abortion.”

Kansas doesn’t ban most abortions until the 22nd week of pregnancy, but it requires minors to obtain the written consent of their parents or a guardian. Other requirements, including the 24-hour waiting period and what a provider must tell patients, have been put on hold. A lower court is considering a challenge to them by providers.

The health and safety rules aimed specifically at abortion providers were enacted in 2011. Supporters said they would protect women’s health — though there was no evidence provided then that such rules elsewhere had led to better health outcomes. Providers said the real goal was to force them out of business.

Standridge said in the majority's opinion on the clinic regulations that not only was there no evidence the rules would improve patients' health, but in some cases, it “affirmatively contradicts” that position.

She wrote that even the state's expert in the case agreed that "existing abortion care is extremely safe” and comparable to care not covered by the regulations.

The other law struck down by the court would have banned a certain type of dilation and evacuation, also known as D&E. It was the first state ban of its kind when it was enacted in 2015.

According to state health department statistics, about 600 D&E procedures were done in Kansas in 2022, accounting for 5% of the state’s total abortions. About 88% of the state’s abortions occurred in the first trimester. The state has yet to release statistics for 2023.

The procedure ban would have forced providers to use alternative methods that the Center for Reproductive Rights has said are riskier for the patient and more expensive.

Justice Eric Rosen, an appointee of former Democratic Gov. Kathleen Sebelius, said in the majority's opinion on the ban that lower-court evidence showed it would force patients to undergo alternative procedures “that are rarely used, are untested and are sometimes more dangerous or impossible.”