OLATHE, Kan. — State courts have become hot spots in the national abortion debate, with Utah's top court and a Kansas judge considering Tuesday whether their state constitutions require them to block or invalidate laws regulating the procedure more than a year after Roe v. Wade was overturned.
The U.S. Supreme Court's June 2022 decision in Dobbs v. Jackson transformed what was long a debate over the U.S. Constitution, immediately limiting the pathways abortion advocates could take in challenging restrictions from one state to the next.
“State courts are incredibly important in this moment when patients are having difficulty accessing abortion because many states have banned it entirely so patients are traveling hundreds or even thousands of miles,” Alice Wang, a Center for Reproductive Rights attorney, told reporters after arguing providers' case in a courtroom in the Kansas City area.
In Kansas, the legal battle is over how providers dispense abortion medications, what they must tell patients and a required 24-hour wait for an abortion after information required by the state is provided to the patient.
Questions about those restrictions hinge on the state constitution — and on the Kansas Supreme Court's 2019 decision declaring bodily autonomy a “fundamental” right that protects abortion access. Kansas doesn't ban most abortions until the 22nd week of pregnancy.
Judge K. Christopher Jayaram was skeptical of parts of those requirements, including provisions in place for years, but did not rule from the bench. He repeatedly questioned an attorney for the anti-abortion Alliance Defending Freedom who was arguing for the state.
The new Kansas law, which took effect July 1, requires providers to tell patients a medication abortion can be stopped once it is started with a regimen that major medical groups call unproven and potentially dangerous. While the state is free to regulate an area of medical “uncertainty,” Jayaram told the alliance's attorney, Denise Harle, that the medical literature he's read suggests there's no good, valid study supporting the regimen.
“I'm concerned about that,” he said.
The state and the providers mutually agreed that the new law wouldn’t be enforced at least until Jayaram decides whether to block the law and the other requirements while a trial of the providers' lawsuit against it goes forward.
Harle said those requirements don't limit bodily autonomy but bolster it by giving patients more information.
“It's not a right to unregulated abortion,” she said in court.
In Utah, the state's attorneys want the state Supreme Court to overrule a lower court's decision to put a 2020 state law banning most abortions on hold. They argued the “original public meaning” of the state constitution drafted in the Mormon Pioneer era in 1895 didn’t guarantee a right to abortion.
“There is no constitutional text, history or common law tradition that can support it, and yet the state’s law has been under way for one year and 28 days, allowing thousands of abortions to proceed," said Taylor Meehan, Utah's outside counsel, echoing an argument Kansas made before the 2019 decision of its highest court.
Planned Parenthood Association of Utah’s attorney Camila Vega argued that the right to an abortion aligned with the court's prior rulings on the Utah Constitution, fell under a broadly defined right to bodily autonomy and ensured other protected rights could be equally guaranteed to men and women.
In Kansas, providers argued that bans in other states only heighten the harm caused by the state's restrictions because patients are traveling much farther for care. Outside the courthouse in Salt Lake City, Planned Parenthood of Utah CEO Kathryn Boyd said if the trigger law takes effect, "Thousands will be forced to flee their communities for basic health care or carry pregnancies to term against their will.”
The Kansas and Utah cases reflect how the impact of the overturning of Roe remains unsettled 13 months later. Republican-controlled legislatures, including in Utah and Kansas, have since pushed to tighten laws surrounding abortion, prompting fierce court battles from the doctors and clinics providing them.
Kansas voters scrambled the national debate last year by decisively rejecting a proposed change in the state constitution sought by GOP lawmakers to say it doesn't grant a right to abortion. Anti-abortion groups warned that without the change — and its rebuke of the Kansas Supreme Court — the state's existing restrictions could fall.
Kentucky also voted to protect abortion rights last year, and Ohio voters on Tuesday rejected a Republican proposal to make it harder to amend the state's constitution — which would have hindered efforts to add abortion-rights protections through a November ballot initiative.
Utah is one of at least five states in which laws restricting abortion have been put on hold amid litigation. In Utah, the result is that abortion isn't banned until the 18th week of pregnancy, but lawmakers subsequently passed additional legislation striking licensing provisions for abortion clinics from state code in an effort to phase them out.
In arguments Tuesday, Utah's majority-women Supreme Court appeared skeptical of the state's claims that the lower court abused its power in putting an abortion law on hold last year. The panel probed Utah's attorneys about arguments that the state's Planned Parenthood affiliate had not raised “serious issues” enough to merit delaying the law.
In the days or weeks ahead, the Utah justices are expected to decide whether to maintain the lower court's hold on the abortion law or take the matter into their own hands because of the state constitutional questions at stake.
