TOPEKA, Kan. — Kansas' attorney general is trying to get ahead of arguments that an anti-abortion measure up for a statewide vote next week would hinder medical care for patients with life-threatening pregnancies.
Attorney General Derek Schmidt, a Republican running for governor who supports the measure, argues in a legal opinion issued Friday that treating miscarriages, removing dead fetuses and ending ectopic pregnancies do not fall under Kansas' legal definition of abortion. The proposal on the ballot Aug. 2 would amend the Kansas Constitution to allow the Legislature to further restrict or ban abortion. It's the first referendum on abortion policy by a state since the U.S. Supreme Court overturned Roe v. Wade last month.
The Texas Medical Society told the state medical board this month that some hospitals were delaying care for pregnancy complications over fears of violating the state's ban on most abortions. An Ohio clinic reported calls from two women who said their doctors would not end their ectopic pregnancies, which occur when an embryo grows outside the womb and often are life-threatening to the women involved.
Opponents of the Kansas measure predict it will lead to an abortion ban, while backers including Schmidt are not saying whether they would pursue one. Schmidt’s opinion says the proposed amendment would not itself “ban or restrict abortion or any medical treatment.”
“Nor would it affect a physician’s ability to render care for ectopic pregnancies, miscarriages or fetal demise,” the opinion states.
Schmidt's opinion confirms what the coalition leading the vote yes campaign has said “all along” about the Kansas measure, spokesperson Mackenzie Haddix said.
Television ads opposing the measure have not specifically mentioned ectopic pregnancies, stillbirths or miscarriages, but they've said that women's lives could be in danger if voters approve the measure. The proposal is anti-abortion lawmakers' response to a 2019 Kansas Supreme Court decision declaring access to abortion a “fundamental” right under the state constitution.
“What these abortion bans are doing that we’ve seen across the country is bringing with them a whole host of other unintended consequences,” said Zack Gingrich-Gaylord, a spokesperson for the abortion-rights group Trust Women, which operates a Wichita clinic.
State Rep. John Eplee, a doctor and a northeastern Kansas Republican, asked Schmidt to issue an opinion earlier this month. Although he already believed the amendment wouldn't hinder medical care, he said he had gotten enough questions from constituents that he wanted Schmidt to weigh in.
“You know, people believe things better when they hear it from an attorney,” said Eplee, who voted to put the proposed amendment on the ballot.
Schmidt's legal opinion says that the state’s legal definition of abortion already excludes treating miscarriages and removing dead fetuses. But it acknowledges that Kansas law contains no reference to ectopic pregnancies.
Schmidt's opinion notes that an abortion is the termination of a pregnancy, and that's defined as having an “unborn child in the mother's body.” The opinion says at least two laws define an unborn child as being in the womb, not outside it. The opinion also argues that the embryo in an ectopic pregnancy is no longer in a stage “leading to birth.”
“On balance, we believe the best interpretation is that the termination of an ectopic pregnancy does not constitute an abortion as defined by Kansas law,” Schmidt wrote, adding that even if it were, state law has consistently allowed abortions to save a patient's life.
Also, the state health department said it does not require providers to report the termination of an ectopic pregnancy as an abortion and does not include such procedures in state abortion statistics.
But opponents of the Kansas amendment find no comfort in Schmidt's legal analysis, saying the measure would allow lawmakers to change the definition of abortion. Dr. Beth Oller, a family physician in Rooks County in northwest Kansas, said Monday that if abortion is banned, doctors might wonder how long they'd have to wait for a woman to be "in jeopardy for her life” before ending an ectopic pregnancy.
“We know that the reason for the amendment is to allow the Legislature to make decisions to restrict reproductive access,” she said in a text to The Associated Press.