Court considers whether constitution protects right to abortion

Kansas Supreme Court justices in 2015.
Kansas Supreme Court justices in 2015. File photo

Several Kansas Supreme Court justices appeared open Thursday to finding that the state constitution grants the right to an abortion.

Justices heard oral arguments in a case that could determine whether a law banning a type of second-trimester abortion is constitutional.

Physicians Herbert Hodes and Tracy Nauser sued over Senate Bill 95, a 2015 law that prohibits doctors from performing dilation and evacuation abortions. That procedure is used in 95 percent of second-trimester abortions and involves the use of surgical tools to remove the fetus.

The law has been under a court injunction and has never been enforced.

Arguments Thursday centered on whether a right to abortion exists within the state constitution. Justice Dan Biles questioned whether the lack of a state constitutional right to an abortion would mean the state could bar a woman from abortion even in cases where it could save her life.

Does the “Kansas Constitution allow the government to say she must die?” Biles asked.

Justice Lee Johnson asked whether the rights within the state constitution can be less broad than the protections in the U.S. Constitution, which the U.S. Supreme Court has ruled protects the right to an abortion. He said the state constitution can’t afford fewer rights than what is guaranteed federally.

“The state constitution does not have to mirror the federal constitution,” said Stephen McAllister, the solicitor general, representing the state.

As a practical matter, McAllister said, women will have the right to an abortion whether or not it exists in the state constitution because the right is protected at the federal level. McAllister said the physicians could mount a challenge under federal law but chose not to do so.

He said Kansas hasn’t ever recognized the right to an abortion, adding that the people can amend the state constitution if they want to recognize that right.

He warned the justices that finding a right to an abortion would open the door to continuous litigation, such as that at the federal level in the wake of the Roe v. Wade decision that affirmed abortion as a constitutional right nationwide.

Attorney Janet Crepps, arguing for the physicians, said the court has in the past found that the Kansas Constitution’s protections mirror the United States Constitution. In explaining why physicians seek a state ruling, she said the U.S. Supreme Court’s view of abortion “ebbs and flows” with the political tide.

“The right to an abortion has been protected under the 14th Amendment for more than 40 years,” Crepps said.

The justices should not only find the state constitution protects the right to an abortion, but also that it is a fundamental right, Crepps said. As a fundamental right, abortion would be more difficult to restrict.

Kathy Ostrowski, a spokeswoman for Kansans for Life, said supporters of abortion rights seek a state ruling because federal court opinions in recent years have opened the door to greater restrictions on abortion.

Ostrowski said it’s difficult to know which state laws might be vulnerable if the court finds the right to an abortion in the state constitution. But she expressed confidence that the court’s ruling would favor abortion opponents.

“We don’t think (the court is) going to do that because the arguments were made very strongly the United States Supreme Court’s opinion about abortion has been pretty much mirrored in Kansas so far.”

The Hodes and Nauser case reached the justices after a lower-court judge ruled the state constitution protects the right to an abortion. The Kansas Court of Appeals then upheld the ruling after an effective tie. Seven judges sided with the state, which is seeking to uphold the law, and seven sided with the doctors, though one issued a separate concurring opinion.

The Trust Women South Wind Women’s Center, which provides abortions in Wichita, said it was hopeful the state Supreme Court would uphold the lower courts.

“With the federal climate toward reproductive rights becoming increasingly hostile, it’s more important than ever for states to recognize that women have bodily integrity and that they must be afforded those inalienable rights under the constitution,” CEO Julie Burkhart said.

Justice Caleb Stegall asked multiple times about the implications that finding a right to an abortion could have for criminal laws. He questioned whether finding a right to an abortion could conflict with a law that allows people to be prosecuted for murdering an unborn child if the unborn child doesn’t have rights.

Johnson said criminal law is meant to protect society. The fetus doesn’t have to possess constitutional rights to be a victim of a crime, he said.

No time line has been set for when the court may issue a ruling.

Jonathan Shorman: 785-296-3006, @jonshorman