Kansas Supreme Court will weigh abortion rights for first time since overturn of Roe

The Kansas Supreme Court on Monday will consider whether abortion should be a guaranteed right in the state constitution for the first time since the federal right to the procedure was eliminated.

Four years after the Kansas court’s landmark 2019 decision establishing abortion as a right, justices will hear arguments about whether that decision was correct and what restrictions should be allowed under that right.

The oral arguments come nearly eight months after Kansas voters overwhelmingly rejected an anti-abortion amendment and voted to uphold the 2019 decision’s state-level protection for abortion.

The court will consider two cases that touch on both whether abortion should be a right in Kansas and to what extent the Legislature is allowed to regulate or restrict abortion if it is a right.

Their eventual ruling will determine whether two anti-abortion laws, which have never been enforced, can take effect. Both bills were signed into law by former Republican Gov. Sam Brownback.

“The stakes are really high, of course, because either one of those cases could have a huge impact on the availability of care,” said Emily Wales, president of Planned Parenthood Great Plains, which operates clinics in Johnson, Sedgwick and Wyandotte counties.

“We feel pretty confident going into this hearing that the judges have already ruled on strict scrutiny standards for the constitutional right to abortion then they, of course, heard from the voters.”

Danielle Underwood, a spokeswoman for Kansans for Life, the state’s largest anti-abortion advocacy group, said the organization hoped “the Kansas Supreme Court will uphold these reasonable, compassionate limits that were enacted with strong bipartisan support.”

Why is the Kansas Supreme Court talking about abortion?

The court will hold arguments in two cases related to abortion laws passed by the Legislature that have been struck down by lower courts since abortion was determined to be a right.

The first, is related to a 2015 law banning dilation and evacuation abortions, a type of surgical abortion that makes up about 6% of abortions in Kansas.

In 2019, when ruling on a preliminary injunction blocking enforcement of the ban in Hodes v. Schmidt, the court made its landmark ruling determining abortion was a fundamental right in Kansas and setting a high bar for any infringements on access.

That ruling, however, did not end the case. The court determined the law should be enjoined and sent the question about whether the ban itself was constitutional back to a district court.

In 2021 a Shawnee County judge ruled that the law violated the state-level right to abortion and struck it down. Then-Kansas Attorney General Derek Schmidt, a Republican who unsuccessfully ran for governor, appealed the decision but asked the court to delay acting on the appeal until after Kansas voters decided on the August constitutional amendment.

On Monday, the court will finally hear oral arguments on the case from Kansas Republican Attorney General Kris Kobach’s office and attorneys for the Hodes and Nauser Center for Women’s Health, an abortion clinic in Overland Park.

They will consider two questions: Whether the court made the correct decision in 2019 when it declared abortion as a right and whether the Shawnee County District Court made the correct decision in 2021 in overturning the dilation and evacuation procedure ban.

The court will also hear arguments in the appeal of a separate lawsuit brought by the Hodes and Nauser clinic against the state. This case centers on a set of restrictive abortion health and safety regulations the Legislature passed in 2011.

In 2021 a Shawnee County judge ruled that the regulations were overly restrictive to abortion access and that abortion clinics already faced health and safety regulations as medical facilities.

Kansas justices will be asked to decide whether that Shawnee County judge made the correct ruling and whether the regulations infringe upon the state level right to an abortion.

How could these cases impact Kansans?

It’s extremely unlikely that the court would overturn its 2019 decision establishing abortion as a right.

Three current justices of the seven-member court joined after the 2019 decision, but all three were appointed by Democratic Gov. Laura Kelly who supports abortion rights.

Three of the justices who handed down that 2019 decision remain on the court and are likely to rule the same way as they did four years ago. The sole dissenting justice in 2019, Caleb Stegall, who was appointed by Brownback, also remains on the court.

While the court is unlikely to change its position on abortion overall, it could offer more clarity on what restrictions are and are not allowed under the Kansas constitution.

The court’s decision establishing abortion as a right meant restrictions on abortion had to clear an extremely high bar known as strict scrutiny to become law despite the right.

What is the court deciding on specific abortion procedures?

The 2015 bill, which sought to ban dilation and evacuation abortions - referred to by abortion opponents as “dismemberment abortion” - was deemed by the Shawnee County court to be unconstitutional because there was “no reasonable alternative” for patients in their second trimester and the law was not “narrowly tailored” to the state’s interest.

The court will be asked to determine if that’s true. Their decision, and the justification behind it, will give lawmakers a better sense as to whether and when they can pass bills restricting specific abortion procedures.

In a brief filed ahead of the hearings attorneys for the Center for Reproductive Rights, representing the Hodes and Nauser clinic, argued that if the court determines the dilation and evacuation ban is constitutional they will have essentially invalidated the right to an abortion.

The state must prove a compelling interest to uphold the ban under the current interpretation of the constitution

In a brief filed last year, former Kansas Solicitor General Brant Laue argued the state had a compelling interest in “promoting respect for the value and dignity of human life” and regulating the medical profession. The dilation and evacuation ban did this, Laue said, by blocking a method that abortion opponents views as brutal.

“Just because other methods of abortion will also lead to an unborn child’s death does not mean the State cannot ensure that the death occurs in as humane a manner as possible,” Laue wrote. He argued the only way to achieve the state interest is by banning the procedure.

Laue’s brief also devoted 14 pages to an argument that the court should overturn its decision finding a right to an abortion in the state constitution.

The Center for Reproductive Rights said in its brief that the court had deemed that the state’s argument for banning the procedure wasn’t good enough.

“That precedent holds that prior to viability, the only relevant state interest that rises to being ‘compelling’ is a ‘woman’s safety,’” the Center for Reproductive Rights argued.

Furthermore, the center argued the ban is not narrow enough to remain in law because it prohibits a safe procedure for second trimester abortions and would cause providers to resort to less safe options.

What is the court deciding on regulation of abortion clinics?

The case about the 2011 regulations bill will focus on what laws targeting abortion providers and clinics, rather than the procedure itself, are permissible under the Kansas Constitution.

The 2011 law has never been enforced because of court injunctions as litigation proceeded.

The law required medication abortions to be physically administered by a physician in the same room as a patient, and required physicians to perform tasks usually performed by a medical assistant. The law also established inspection requirements beyond what is expected of other facilities and established a minimum recovery time for patients.

Kansas Supreme Court justices could choose to uphold the Shawnee County Court decision overturning the law in its entirety or allow all or part of the law to take effect. They will determine whether the regulations in the law infringe upon the right to an abortion. If the laws do infringe upon the right to an abortion the court will determine whether they are narrowly tailored to a compelling state interest.

Laue, the former solicitor general, argued in a brief last year that the regulations did not impede upon the right to an abortion and that they satisfied the strict scrutiny standard because the state has an interest in protecting the health of patients.

“The clinic regulations do not ban abortion, nor do they create any requirements a woman seeking an abortion must satisfy before she can exercise her right to choose,” Laue wrote. He added that if an abortion provider failed to meet the regulations a patient would be able to find another provider.

The Center for Reproductive Rights urged the court to uphold the district court’s decision to fully strike down the law.

The regulations, the center’s attorneys said, make it “difficult, if not impossible” for the Hodes and Nauser clinic to continue providing abortion care by forcing them to make unnecessary changes to staffing, equipment and the facility itself.

“The State has not shown any reason to treat abortion differently than comparable medical care, much less care that is more complex and carries greater medical risk than abortion care,” the brief said.