TOPEKA, Kan. — Kansas’ highest court on Friday struck down state laws regulating abortion providers more strictly than other health care providers and banning a common second-trimester procedure, reaffirming its stance that the state constitution protects abortion access.
The Kansas Supreme Court’s rulings in two separate cases signal that the state’s Republican-controlled Legislature faces stricter limits on regulating abortion than GOP lawmakers thought and suggests other restrictions could fall. Lawsuits in lower state courts already are challenging restrictions on medication abortions, a ban on doctors using teleconferences to meet with patients, rules for what doctors must tell patients before an abortion and a requirement that patients wait 24 hours after receiving information about a procedure to terminate their pregnancies.
“We stand by our conclusion that section 1 of the Kansas Constitution Bill of Rights protects a fundamental right to personal autonomy, which includes a pregnant person’s right to terminate a pregnancy,” Justice Eric Rosen wrote for the majority on the decision around dilation and evacuation, also known as D&E.
Friday's decisions were both 5-1 with Justice K.J. Wall not participating.
Justice Caleb Stegall — the lone dissenter in both decisions — was appointed by conservative Republican Gov. Sam Brownback and is widely regarded as the court’s most conservative member. He was the only dissenter in the 2019 decision.
Kansas’ top court declared in a 2019 decision that abortion access is a matter of bodily autonomy and a “fundamental” right under the state constitution. Voters in August 2022 also decisively rejected a proposed amendment that would have explicitly declared abortion not a fundamental right and allowed state lawmakers to greatly restrict or ban it.
Lawyers for the state had urged the justices to walk back their 2019 ruling and uphold the two laws, which haven’t been enforced because of the legal battles over them. The state’s solicitor general, appointed by Republican Attorney General Kris Kobach, had argued the 2022 vote didn’t matter in determining whether the laws could stand.
The court disagreed and handed abortion-rights supporters a big legal victory.
Kansas has become an outlier among states with Republican-controlled Legislatures since the U.S. Supreme Court issued its Dobbs decision in June 2022, allowing states to ban abortion completely. That’s led to an influx of patients from states with more restrictive laws, particularly Oklahoma and Texas. The Guttmacher Institute, which supports abortion rights, projected last month that about 20,000 abortions were performed in Kansas in 2023 or 152% more than in 2020.
Kansas doesn’t ban most abortions until the 22nd week of pregnancy, but it requires minors obtain the written consent of their parents or a guardian. Other requirements, including the 24-hour waiting period and what a provider must tell patients, have been put on hold. A lower court is considering a challenge to them by providers.
Abortion opponents argued ahead of the August 2022 vote that failing to change the state constitution would doom long-standing restrictions enacted under past GOP governors. Kansas saw a flurry of new restrictions under former Republican Gov. Sam Brownback from 2011 through 2018.
The health and safety rules aimed specifically at abortion providers were enacted in 2011. Supporters said they would protect women’s health — though there was no evidence provided then documenting that such rules in other states led to better health outcomes. Providers said the real goal was to force them out of business.
The other law was the first of its kind in the nation when enacted in 2015 and deals with a certain type of dilation and evacuation, or D&E, procedure performed during the second trimester.
According to state health department statistics, about 600 D&E procedures were done in Kansas in 2022, accounting for 5% of the state’s total abortions. About 88% of the state’s abortions occurred in the first trimester. The state has yet to release statistics for 2023.
The D&E procedure ban would have forced providers to use alternative methods that the Center for Reproductive Rights, an abortion-rights advocacy group, has said are riskier for the patient and more expensive.
The 2019 ruling came in the early stages of the lawsuit over the 2015 ban. The justices kept the law on hold but sent the case back to the trial court to examine the ban further. A trial judge said the law could not stand.
Three of the court’s seven justices joined the court since the 2019 decision. All three were appointed by Democratic Gov. Laura Kelly, a strong abortion-rights supporter, but one of the three, Justice K.J. Wall, removed himself from the cases.
—
