Court case could challenge Kansas fetal pain law

Another big showdown over abortion brewing in the federal courts could have meaning for Kansas.

Two years ago, Kansas was among just a handful of states to ban abortion starting at 22 weeks — with some limited exceptions — regardless of whether the fetus was able to survive outside the womb.

The ban, based on the disputed claim that fetuses can feel pain, was patterned after a law passed by Nebraska in 2010. Now, nine states have fetal pain bills on the books.

But doctors are challenging Arizona’s fetal pain law, and their lawyers believe the state will ask the U.S. Supreme Court to consider the issue if the law is struck down.

A federal appeals court in California temporarily blocked the Arizona law, which banned late-term abortions starting at 20 weeks. Lawyers made oral arguments in November and it could be as long as six months before a decision comes.

The Arizona case was the second legal challenge against a fetal pain bill. In the first case, brought in Idaho, a federal appeals court ruled that the woman who filed the lawsuit didn’t have didn’t have legal standing to contest the law.

A third suit has been in filed in state court against a similar law in Georgia. A judge temporarily blocked the Georgia law on Christmas Eve.

The case with the most traction so far is in Arizona, where the physicians contend that Supreme Court precedent gives women the right to terminate a pregnancy before viability.

In court papers, the physicians argue that the Supreme Court ruled specifically in 1992 that a state cannot bar a woman from terminating her pregnancy before viability.

The implications for Kansas are unclear, especially since few late-term abortions have been performed in Kansas since Wichita abortion provider George Tiller was shot to death in 2009. Only one abortion was performed after 22 weeks in 2010. No late-term abortion was performed in 2011.

The Kansas law could be most at risk if the appeals court strikes down the Arizona law, that decision is later upheld by the Supreme Court.

Under the old Kansas law, physicians had latitude to decide whether a fetus was viable. If it wasn’t, the abortion could proceed. But under the new law, abortions are outlawed at 22 weeks and beyond unless the woman’s life is in danger or there might be substantial and irreversible physical impairment of a major bodily function. Mental health is not a permissible exception under the new law.

Abortion opponents say they don’t have any short-term worries about the Kansas law even though critics believe it’s unconstitutional because it bans pre-viability abortions.

“I don’t think it has any effect on what we have done in our state. I don’t think anybody is anxious to do late-term abortions,” said Kathy Ostrowski, lobbyist for Kansans for Life.

Lawyers for the Arizona physicians believe that state will ask the Supreme Court to hear the case if it loses. They are hopeful about the outcome.

The appeals court judges “were certainly focused in on the fact that the law seems to be contrary to what the Supreme Court has laid down as the rules,” said Janet Crepps, senior counsel at the Center for Reproductive Rights.

But even if Arizona loses, Crepps said there are reasons to believe that the Supreme Court might not take up the case, which would effectively leave the Kansas law intact — at least until someone else might bring a lawsuit in Kansas.

“What we are seeing in Arizona and Georgia are physicians coming forward and saying, ‘I do these procedures and I want to keep doing them,’ ” Crepps said, “whereas in Kansas, I’m not sure there’s a physician who would be willing to come forward and say, ‘I’m doing these procedures right now.’ ”