Government & Politics

Evenly divided Kansas Appeals Court says ‘no’ to state abortion law

A divided Kansas Appeals Court’s decision on the Legislature’s law banning the dilation and evacuation abortion procedure keeps the measure on hold, likely sending it to the state Supreme Court.
A divided Kansas Appeals Court’s decision on the Legislature’s law banning the dilation and evacuation abortion procedure keeps the measure on hold, likely sending it to the state Supreme Court.

The Kansas Court of Appeals on Friday left in place a lower-court decision blocking a first-in-the-nation state law that would have banned a procedure common in second-trimester abortions.

The Kansas Legislature passed the ban on the procedure, which it described as dismemberment of the fetus, last year. Medically, the procedure is known as dilation and evacuation.

Reflecting the controversial nature of the case, the Court of Appeals decision came in a 7-7 vote. In a tie vote, the lower court’s ruling is affirmed.

Last summer, a Shawnee County judge blocked the law from taking effect, ruling that the right to an abortion was protected by the Kansas Constitution and that the law likely was too big of an obstacle for women seeking to end their pregnancies.

The appeals court noted Friday the case is historic because it’s the first time a Kansas appellate court “has been required to decide whether the Kansas Constitution provides a right to abortion.”

The Court of Appeals on Friday was evenly split on that question, with seven judges finding a right to abortion in the state constitution and seven finding no such right. Kansas Attorney General Derek Schmidt said he would quickly appeal to the Kansas Supreme Court.

“First,” wrote Appeals Court Judge Steve Leben, “we are not called upon in this case to announce, or to act upon, our own personal views regarding abortion. We have done our best to carry out that obligation to define the liberty of all — squarely based on the precedents of the Kansas Supreme Court and the United States Supreme Court, which we are required to apply — and not to mandate our own moral code or religious beliefs.”

The opinion in favor of an abortion right in the Kansas Constitution said the state Supreme Court had interpreted a section of the Kansas Constitution’s Bill of Rights to be equivalent to the due process and equal protection clauses of the U.S. Constitution’s 14th Amendment.

“Because the right to abortion is part of the liberty protected by the due process clause to the 14th Amendment, the Kansas Constitution provides the same right to abortion that is protected under federal law,” Leben wrote.

The opposing opinion said the right to an abortion was not stated in the Kansas Constitution and was not guaranteed.

“The subject of abortion places the pregnant woman’s liberty interest directly at odds with the unborn child’s right to life,” wrote Chief Judge Thomas Malone. “The balancing of these interests is a question of public policy. Our state legislature, not an intermediate court of appeals, is the branch of government charged with the development of public policy on behalf of Kansas citizens.”

The challenge to the state law was brought by the Center for Reproductive Rights on behalf of Herbert Hodes and Traci Nauser, who are father and daughter physicians at an Overland Park health center.

The organization argued that the law, which it said applies to 95 percent of second-trimester abortions nationally, meant women would either have to forgo abortions or choose riskier procedures.

In the statute, which sponsors called the Kansas Unborn Child Protection from Dismemberment Abortion Act, the procedure was described as a doctor using “clamps, grasping forceps, tongs, scissors or similar instruments” to remove the “unborn child one piece at a time.” The law included exceptions to protect a woman’s life and physical health.

The state’s lawyers were adamant in their appeal of the lower court ruling that no court had ever recognized a right to an abortion under the Kansas Constitution, calling such an opinion “stunning.”

Even if there were such a right, the U.S. Supreme Court has said that a state may prohibit a particular abortion procedure when reasonable alternatives were available, the lawyers said.

“Here, the Kansas Legislature prohibited only one method of performing a common second-term abortion procedure, while a number of safe alternative methods remain available,” the state’s appeal said.

But the Court of Appeals decision said the state was “banning the most common, safest procedure and leaving only uncommon and often unstudied options available.”

Gov. Sam Brownback called on the Supreme Court to take up the matter quickly.

“I am deeply disappointed in the court’s decision to allow dismemberment abortions of a living child to continue in the state of Kansas,” Brownback said in a written statement. “The court’s failure to protect the basic human rights and dignity of the unborn is counter to Kansans’ sense of justice.”

Seven of the court’s 14 judges chose “to create law based upon their own preferences rather than apply the law justly and fairly,” Brownback said.

Opponents of the law said its graphic language was meant to heighten emotions in the abortion debate. The dilation and evacuation procedure is the safest for women’s health in the second trimester, they said.

About 9 percent of abortions in Kansas last year used the dilation and evacuation procedure, the state health department said. Most abortions are banned in Kansas in the 22nd week of pregnancy and later.

The date of the Court of Appeals decision Friday coincided with the anniversary of the landmark U.S. Supreme Court ruling in Roe v. Wade, Jan. 22, 1973, which was observed by anti-abortion groups in Topeka and around the country.

Kansans for Life said the ruling was “outrageous.”

The law, the anti-abortion group said in a statement, was designed to pass muster with the U.S. Supreme Court. The state has the right to show respect for the developing unborn and to ensure the integrity of the medical profession, the group said.

“Even pro-abortion justices of the U.S. Supreme Court have acknowledged that the dismemberment of a living unborn child is as brutal and inhumane a method of abortion as the partial-birth abortion procedure, which is now illegal throughout the country,” the statement said.

Planned Parenthood Advocates of Kansas and Mid-Missouri heralded the court’s recognition of a right to an abortion in the Kansas Constitution.

The law was “an irresponsible attempt to restrict women’s access to safe, legal, surgical abortions,” Laura McQuade, the group’s president, said in a statement. “It is unfortunate Kansas lawmakers repeatedly need judicial reprimands for their unconstitutional policymaking when it comes to women’s health.”

Edward M. Eveld: 816-234-4442, @EEveld

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