Challenge to 2015 ban could doom other Kansas abortion laws
10:34 AM, Mar 16, 2017
TOPEKA, Kan. (AP) — Abortion opponents who've enjoyed a long string of legislative victories in Kansas worry that a legal challenge to a first-in-the-nation ban on a common second-trimester procedure could doom other restrictions they've won in recent years.
The Kansas Supreme Court will hear arguments Thursday in a lawsuit filed by Kansas City-area father-daughter physicians against a 2015 law that has become a model for abortion opponents in other states. The key issue is whether the Kansas Constitution protects abortion rights independently of the U.S. Constitution, and if the justices uphold a lower-court judge's decision saying so, state courts could invalidate restrictions that have been upheld by the federal courts.
Abortion opponents fear that the Kansas courts could thwart their efforts to enact new laws even if President Donald Trump's appointments result in a more conservative U.S. Supreme Court.
They waged an unsuccessful, pre-emptive campaign to oust four of the seven justices from Kansas' highest court in last year's election; six justices were appointed by Democratic or moderate Republican governors. The justices have faced strong criticism in the past from the Republican-controlled Legislature and conservative GOP Gov. Sam Brownback over past rulings in a wide variety of cases.
"Nobody's safe while that court's in session," said state Sen. Steve Fitzgerald, a conservative Leavenworth Republican who recently likened Planned Parenthood to a Nazi concentration camp. "I mean, they could do anything."
The Kansas law bars physicians from using forceps or similar instruments on a live fetus to remove it from the womb in pieces, using the non-medical term "dismemberment abortion" to describe the procedure. Such instruments are commonly used in dilation and evacuation procedures, which the New York-based Center for Reproductive Rights has said is the safest and most common abortion procedure in the U.S. in the second trimester.
Kansas has yet to enforce its law because of the lawsuit, filed by Drs. Herbert Hodes and Traci Nauser, who operate a women's health center in the Kansas City suburb of Overland Park.
The Kansas law was model legislation drafted by the National Right to Life Committee, and the group says similar bans have been enacted in six other states — Oklahoma, West Virginia, Mississippi, Alabama, Louisiana and Arkansas.
"We have to stop this attack on abortion rights based on this extreme agenda," said Bonyen-Lee Gilmore, a spokeswoman for Planned Parenthood Great Plains. "This is a coordinated national attack against safe, legal abortion."
Abortion providers reported performing 629 dilation and evacuation procedures in Kansas in 2015, according to the latest state health department data available. That was 9 percent of the state's total abortions.
A Shawnee County district judge put the law on hold while the lawsuit goes to trial, ruling that it imposes an unconstitutional burden on women seeking abortions. But the judge also declared that general language in the state constitution's Bill of Rights protects the right to an abortion, the first time a Kansas court has so ruled.
The state's Bill of Rights says residents have "natural rights" including "life, liberty and the pursuit of happiness" and that "free governments" were created for their "equal protection and benefit."
The Kansas Court of Appeals split 7-7, allowing the district judge's decision to remain in effect. The appeals court issued its decision last year on the anniversary of the U.S. Supreme Court's historic 1973 Roe v. Wade ruling legalizing abortion cross the nation, and Kansas Attorney General Derek Schmidt appealed to the state Supreme Court.