The Kansas Court of Appeals refused Friday to allow the state's first-in-the-nation ban on a common second-trimester abortion method to take effect, saying in a split but groundbreaking decision that the conservative state's constitution protects abortion rights independent of the U.S. Constitution.
If the 7-7 ruling — released on the anniversary of the U.S. Supreme Court's Roe v. Wade decision — is allowed to stand, it could upend several other abortion restrictions in Kansas because a key issue in the case is whether a woman's right to end her pregnancy is specifically protected by the Kansas Constitution. Tie votes from the court uphold the lower-court ruling being appealed.
Seven appellate judges agreed with a county judge who said the Kansas Constitution's Bill of Rights has general statements about personal liberties that create independent protections for abortion rights. Such a finding would allow the state's courts to protect those rights more than the federal courts have done, which abortion opponents fear could allow state judges to invalidate restrictions in Kansas that federal courts might allow.
"The rights of Kansas women in 2016 are not limited to those specifically intended by the men who drafted our state's constitution in 1859," the appeals court wrote.
The decision is expected to be appealed to the Kansas Supreme Court.
The ruling stems from a lawsuit filed by two abortion providers who said the 2015 law is an unconstitutional burden on women seeking to end their pregnancies. The law prohibits doctors from using forceps or similar instruments on a live fetus to remove it from the womb in pieces.
Such instruments are commonly used in dilation and evacuation procedures, which the Center for Reproductive Rights has said is the safest and most common abortion procedure in the U.S. in the second trimester.
A similar Oklahoma law also was blocked by a state-court judge, while lawmakers in Nebraska have considered similar measures.
The Kansas law was put on hold by a lower court during the legal fight, and the appeals court upheld that decision. The lawsuit cites only rights granted in the Kansas Constitution, meaning the case will be handled in the state court system.
The ruling came as abortion opponents converged on the Statehouse for a rally marking the 43rd anniversary of the U.S. Supreme Court's Roe v. Wade decision legalizing abortion nationwide.
Kansas Senate Majority Leader Terry Bruce said he can't imagine a scenario where the framers of the Kansas Constitution meant to legalize abortion. David Gittrich, a leader with Kansans for Life, added that his group will work to oust Kansas Court of Appeals judges in elections later this year.
"How much worse can you get?" Gittrich said. "If any type of abortion should be banned, it's that one."
The state law at issue in the case seeks to prevent doctors from using their medical judgment to provide the best care for their patients, said Julie Burkhart, founder and CEO of Trust Women and South Wind Women's Center, which provides abortion services in Wichita.
"Women deserve the right to access necessary reproductive health care without undue governmental interference," Burkhart said, praising the court's ruling.
At issue in the lawsuit is whether broad legal language about individual liberty protects abortion rights. The Kansas Constitution states that residents have "natural rights," and that "free governments" were created for their residents' "equal protection and benefit."
A Shawnee County judge cited the same constitutional language when blocking the law last year, ruling that the Kansas Constitution protects abortion rights at least as much as the U.S. Constitution. The judge also ruled that the ban imposes an unconstitutional burden on women seeking abortions.
Kansas law calls the banned method "dismemberment abortion," echoing a description coined by anti-abortion groups. But none of the attorneys or judges used such a phrase during arguments before the court last year.
The lawsuit was filed by father-daughter Drs. Herbert Hodes and Traci Nauser, who perform abortions at their health center in the Kansas City suburb of Overland Park.
The case has involved all of the appeals court's judges, rather than the normal three-judge panel, which judicial branch officials believe hasn't happened since 1989.
The decision upholding the lower-court ruling was written by Judge Steve Leben, an appointee of former Democratic Gov. Kathleen Sebelius.
Governor Sam Brownback issued the following statement in response to the Kansas Court of Appeals decision upholding the lower court's injunction blocking the state's dismemberment abortion ban.
“I am deeply disappointed in the court’s decision to allow dismemberment abortions of a living child to continue in the State of Kansas. The court’s failure to protect the basic human rights and dignity of the unborn is counter to Kansans' sense of justice. The closeness of today’s decision highlights the importance of every single judge in upholding the right to life. Seven judges have chosen to create law based upon their own preferences rather than apply the law justly and fairly. I support the Attorney General in his call on the Kansas Supreme Court for a swift decision protecting the unborn."
