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Full Kansas Court of Appeals Mulls Ban on Certain Abortion Procedure

The full Kansas Court of Appeals on Wednesday heard arguments over a state law (SB 95) banning a certain type of abortion procedure, the AP/Lexington Herald-Leader reports. The arguments focused on whether the state constitution protects the right to abortion (Hanna, AP/Lexington Herald-Leader, 12/9).


The law, which was drafted by the National Right to Life Committee, would permit exceptions only if continuing the pregnancy would result in a woman's death or the irreversible physical impairment of a major bodily function. The law does not include exceptions for cases of incest or rape. It also does not include an exception if a woman is experiencing mental health issues.

The Center for Reproductive Rights filed the lawsuit in Shawnee County District Court on behalf of Herbert Hodes and Traci Nauser, ob-gyns at the Center for Women's Health in Overland Park, Kan. The providers contend that under the law, doctors would be forced to change their manner of providing abortion care, resulting in practices that increase the complexity of abortions and the health risks to women. Further, they said Supreme Court precedent prohibits states from banning the most commonly used procedure for abortion. According to CRR, the procedure that would be banned under the law is used in 95% of abortions that take place during the second trimester.

In June, Shawnee County District Court Judge Larry Hendricks issued a temporary injunction on the law, which was scheduled to take effect in July. He said while alternative abortion methods would remain legal under the law, those "alternatives do not appear to be medically necessary or reasonable." In addition, he noted that the state constitution protects a woman's right to abortion at least to the extent that the U.S. Constitution does.

Kansas Attorney General Derek Schmidt (R) appealed Hendricks' decision, and both parties in the lawsuit asked the Kansas Supreme Court to take over the case. The state Supreme Court in September voted 4-3 to refuse, and it did not disclose the reasoning behind the decision. In October, the Kansas Court of Appeals announced that the full panel of 14 judges would hear the lawsuit (Women's Health Policy Report, 10/22).

Arguments Over Law's Constitutionality

The appeal is focused on whether the lower court acted correctly when it issued a temporary injunction against the law (Hancock, Lawrence Journal-World, 12/9). However, the appeals court judges spent most of the hearing weighing arguments over the law's constitutionality (Lowry, Wichita Eagle, 12/9).

CRR attorney Janet Crepps, who is representing the abortion providers, contended that the state constitution provides the same privacy rights, including the right to abortion, as the Supreme Court has found in the U.S. Constitution.

According to the Lawrence Journal-World, the Kansas Supreme Court never has clarified whether the state constitution's bill of rights provides the same privacy protections enshrined in the U.S. Constitution's 14th Amendment, which holds that states cannot deny any citizen "life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The Journal-World reports that federal courts have interpreted that amendment to include "substantive due process" since it was ratified in 1865. Substantive due process holds that "any governmental interference with a fundamental right be fair, reasonable and in pursuit of a legitimate government interest," according to Journal-World.

Meanwhile, the Kansas Constitution, written six years before the 14th amendment, does not include an explicit due process clause. According to the Journal-World, the state constitution's bill of rights includes an equal protection clause that holds, "All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness" (Lawrence Journal-World, 12/9).

Crepps on Wednesday contended that the state constitution provided rights similar to the federal Constitution's due process rights, and that because those rights had been interpreted at the federal level to protect the right to abortion, they are also protected at the state level (Wichita Eagle, 12/9). "It's important to have the Kansas courts recognize these rights under the Kansas Constitution," she said (AP/Lexington Herald-Leader, 12/9).

Kansas Solicitor General Steven McAllister (R) argued that the state constitution was written to reflect the Declaration of Independence, not the U.S. Constitution, and that it does not include a right to substantive due process.

After the hearing, Crepps said the state is taking an "extreme" position on the constitutional arguments which could have ramifications beyond abortion rights. "Substantive due process has been recognized to protect not just abortion, but the right of contraception, inter-racial marriage, homosexual relationships, and a whole realm of personal privacy that the government isn't entitled to intrude in," she said, adding, "I think that the citizens of Kansas would actually be shocked to hear that their state government takes such an extremely narrow view of their rights under the Kansas Constitution" (Lawrence Journal-World, 12/9).

During Wednesday's hearing, Crepps also voiced concern about the law itself, noting that it would "requir[e] physicians to experiment on women." She added, "The proposed alternatives [to the banned procedure] present an unprecedented burden."

Judges Comment on Constitutional Arguments

Several of the appeals court judges pointed out that the state constitution previously had been interpreted to provide rights similar to the 14th amendment, the Wichita Eagle reports (Wichita Eagle, 12/9). Judge Steve Leben said, "There are maybe 10 cases that say specifically that they are given much the same effect as the due process and equal protection provisions" (Lawrence Journal-World, 12/9).

According to the AP/Herald-Leader, the state Supreme Court in 2006 ruled that it traditionally interprets the state constitution to "echo" federal protections for abortion rights and privacy rights, but it has not specifically ruled that the state constitution independently provides such protections.

Meanwhile, Judge David Bruns said to Crepps, "We would have to extend Kansas law and do something the Kansas Supreme Court hasn't done." Judge Henry Green Jr. added that the state constitution "belongs to the people," noting, "We don't insert anything. We don't omit anything" (AP/Lexington Herald-Leader, 12/9).

Next Steps

The appeals court did not disclose when it would rule on the lawsuit. However, the appeals court typically issues rulings within four to six weeks of the arguments (Lawrence Journal-World, 12/9).

According to the Eagle, if the appeals court rules in favor of the plaintiffs in terms of the constitutional arguments, the lawsuit "would establish a stronger protection for abortion under state law" (Wichita Eagle, 12/9). However, the court might opt to rule on only the procedural issue regarding the temporary injunction (Lawrence Journal-World, 12/9).

If the appeals court decides to uphold the injunction, the state could appeal to the Kansas Supreme Court. Alternatively, the court could vacate the injunction and send the case back to the lower court (Wichita Eagle, 12/9).