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Kansas Supreme Court considers whether to overrule protection of abortion

Kansas Supreme Court Justice Melissa Taylor Standridge asks for clarification on a statement made by Kansas Solicitor General Anthony Powell during Monday's Hodes & Nauser v. Stanek case. (Pool Photo by Evert Nelson/The Capital-Journal)
Evert Nelson
Topeka Capital-Journal
Kansas Supreme Court Justice Melissa Taylor Standridge asks for clarification on a statement made by Kansas Solicitor General Anthony Powell during Monday's Hodes & Nauser v. Stanek case. (Pool Photo by Evert Nelson/The Capital-Journal)

Republican Attorney General Kris Kobach has asked justices to reconsider an earlier ruling that found the state constitution protects the right to an abortion.

The Kansas solicitor general pleaded with the state supreme court on Monday to reverse a landmark 2019 decision that found the state constitution protects the right to an abortion.

That earlier ruling established that any legislation restricting abortion must pass a high “strict scrutiny” test and that the state must demonstrate that the restriction serves a compelling state interest.

Monday’s hearing came less than a year after voters overwhelmingly rejected a proposal from the Republican-controlled Legislature to strip abortion protections from the state constitution.

Justices heard oral arguments in two abortion cases on Monday.

The first concerns a state law banning a common second-trimester abortion procedure called dilation and evacuation. The second concerns a set of regulations focused specifically on facilities that provide abortion — beyond those that govern other medical facilities.

In both cases, the state is appealing lower court decisions to permanently block the restrictions in light of the 2019 ruling.

Solicitor General Anthony Powell said the Supreme Court’s strict scrutiny standard prevents lawmakers from enacting reasonable restrictions, including the ban on dilation and evacuation abortions. He described those as inhumane “dismemberment abortions.”

“All we’re coming to you today to ask you to uphold,” he said, “is one reasonable restriction on abortion.”

But a decision against abortion providers in the case could be monumental, potentially paving the way for lawmakers to impose even more stringent abortion restrictions or to ban abortion outright.

Abortion providers have argued that banning dilation and evacuation abortions — the most common method in the second trimester — forces women to choose less safe and reliable alternatives.

Attorney Alice Wang of the Center for Reproductive Rights, arguing against Powell, said the ban asks doctors to substitute a standard and safe procedure for something more invasive and dangerous, like injecting the drug digoxin into the fetus or amniotic fluid.

“Digoxin must be injected through a spinal needle into the abdomen or the vagina and cervix,” she said. “It carries risks of infection, nausea and unplanned delivery outside of the medical setting.”

Justice Dan Biles asked whether that would be any more humane than dilation and evacuation.

“It has a 20% failure rate,” he said. “It sometimes takes a second dose for which there’s no medical research on. So how can you say one’s more humane than the other?”

The court is also considering whether certain restrictions on abortion providers that go beyond those imposed on other medical providers infringe on the right to an abortion.

Justices appeared skeptical about the state’s argument that the restrictions satisfied strict scrutiny.

“Already in place are professional regulations that doctors and physicians have to abide by,” said Justice Eric Rosen. “There's already a governmental mechanism in place that ensures the public safety.”

Biles said a lower court blocked the restrictions because the state didn’t identify any safety concerns specific to abortion providers that would warrant more stringent regulation.

“This … needs to be analyzed as an overregulation case — killing an ant with an atom bomb,” he said. “You’re overregulating, and thereby not gaining anything other than restricting access to abortion.”

Powell said the state’s position is that abortion is inherently different from other medical procedures.

“The act of abortion and the procedure takes a human life,” he said. “That justifies the additional regulation over and atop what general regulations may exist governing the medical profession.”

Danielle Underwood, a spokesperson for Kansans for Life, said the court should reinstate the clinic restrictions.

“At the very least, abortion clinics should be required to be licensed and have the highest safety standards for women.”

Caroline Sacerdote, an attorney who argued against the state on behalf of the Center for Reproductive Rights, said in an interview that reinstating the laws would significantly interfere with doctors’ ability to provide abortions in Kansas.

“They heap a slew of restrictions onto the provision of abortion care that would apply from the time a patient walks into a medical office to seek constitutionally protected care until the time they leave that office,” she said.

Several justices referenced the landslide vote last August when Kansans decided against removing the right to an abortion from the state constitution.

“We had a vote in August, and it was pretty overwhelming, to reject the proposition to amend the constitution,” said Justice Biles. “That’s the elephant in the room: How do we factor that in when you’re asking us to change our interpretation of the Kansas Constitution when the people spoke so forcefully?”

Chief Justice Marla Luckert said voters signaled agreement with the court’s decision when they were asked.

“The check on us is through legislation and constitutional amendment,” she said. “That’s what was played out in August.”

But Justice Caleb Stegall, who was the only justice to dissent to the court’s 2019 decision, said the August vote has little relevance to the court’s interpretation of the state constitution.

“One of the things we often say as a court is that we don’t take public opinion polls about the meaning of the constitution,” he said.

“Assume that it’s sort of beyond question that what the people of Kansas were doing in August was ‘endorsing’ the opinion of this court,” Stegall said. “As a matter of constitutional law, why would that matter?”

The ideological makeup of the court has not significantly changed since its earlier abortion rulings.

But the threat of a potential reversal by the court would have wide-reaching implications, given the state’s newfound role as an abortion destination for patients from across the South and Midwest after the fall of Roe v. Wade last summer.

Abortion providers said the case threatens the availability of abortion across the region.

“The stakes are high because either case could have an impact on the availability of care on an already overburdened system,” said Emily Wales, President and CEO of Planned Parenthood Great Plains. “We are confident the justices will see this for what it is: a blatant attempt by anti-abortion politicians to prohibit people from accessing their right to reproductive health care, which is constitutionally protected.”

Copyright 2023 KMUW | NPR for Wichita. To see more, visit KMUW | NPR for Wichita.

Rose Conlon