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Kan. Appeals Court Upholds Block on Law Banning Certain Abortion Procedure

The Kansas Court of Appeals on Friday ruled 7-7 to uphold a lower court ruling that keeps a ban (SB 95) on a certain abortion procedure from taking effect, the New York Times reports (Eckholm, New York Times, 1/22).

According to the AP/Sacramento Bee, a split ruling means that the lower court's decision is upheld (Hegeman, AP/Sacramento Bee, 1/22).

Background

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 2015, 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." He noted that the state constitution protects a woman's right to abortion at least to the extent that the U.S. Constitution does.

Schmidt 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 2015 voted 4-3 to refuse.

In October 2015, the Kansas Court of Appeals announced that the full panel of 14 judges would hear the case. The appeal was focused on whether the lower court acted correctly when it issued a temporary injunction against the law. Arguments in the appeal focused on whether the state constitution protects the right to abortion (Women's Health Policy Report, 12/10/15).

Ruling Details

On Friday, the appeals court ruled in favor of the lower court's temporary injunction, as well as Hendrick's statements that the Kansas Constitution's language on personal liberties includes women's right to abortion care. According to the AP/Bee, the lawsuit has yet to go to trial, but the appeals court decision suggests how it might rule if it decides to hear the full case.

Judge Steve Leben, writing on behalf of the appeals court judges siding with the lower court, noted, "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." Meanwhile, the judges ruling against the lower court said the state Legislature is "free to restrict abortion procedures" so long as it does not violate federal protections on abortion rights.

Next Steps

State Attorney General Derek Schmidt (R) said the state plans to appeal the decision to the Kansas Supreme Court (AP/Sacramento Bee, 1/22). The split ruling means it is likely that the state Supreme Court will hear the case, the Times reports.

According to CRR, at least 10 state supreme courts have found that abortion rights are protected by their respective state constitutions. Lower courts in four additional states have issued similar decisions.

Comments

CRR President Nancy Northup called the ruling "a landmark victory for Kansas women." She noted that the decision affirms that Kansas women "have the right to safely and legally end a pregnancy under their state Constitution, free from political interference" (New York Times, 1/22).

Separately, Laura McQuade, president and CEO of Planned Parenthood Advocates of Kansas and Mid-Missouri, said if the decision stands, it would "immensely strengthen protection" of abortion rights in Kansas.

Julie Burkhart, founder and CEO of Trust Women and South Wind Women's Center, also praised the ruling. "Women deserve the right to access necessary reproductive health care without undue governmental interference," she said (AP/Sacramento Bee, 1/22).