Appeals court: Kansas Constitution protects abortion rights

The full 14-member of the Kansas Court of Appeals enter the Supreme Court courtroom in Topeka, Kan., to hear oral arguments Wednesday, Dec. 9, 2015. The lawsuit against a Kansas ban on a common second-trimester procedure has forced the state Court of Appeals to consider how much the state constitution protects abortion rights.

? The Kansas Court of Appeals refused Friday to implement the state’s first-in-the-nation ban on a common second-trimester abortion method, ruling in a split but groundbreaking decision that the conservative state’s constitution protects abortion rights independently from the U.S. Constitution.

The 7-7 ruling — released on the anniversary of the U.S. Supreme Court’s Roe v. Wade decision — could be used by abortion rights supporters to challenge other state laws restricting abortion. If the decision is upheld, it would allow state courts to protect a woman’s right to end her pregnancy beyond federal court rulings.

Tie votes uphold the ruling being appealed, meaning Friday’s ruling sides with a Shawnee County judge who put the 2015 law on hold while he considers a lawsuit challenging the ban. The lawsuit has yet to go to trial, but the judge said the Kansas Constitution’s general language about personal liberties extends to abortion rights — which the appeals court also supported, indicating how it may rule if it gets the full case.

“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,” Judge Steve Leben wrote on behalf of the seven judges who sided with the lower court.

The state will quickly appeal to the Kansas Supreme Court, Attorney General Derek Schmidt said, adding that the split decision offered little clarity on the constitutional questions.

If the decision stands, it would “immensely strengthen protection” of abortion rights when Planned Parenthood and similar organizations challenge legislation and laws that restrict abortion in Kansas, said Laura McQuade, president and CEO of Planned Parenthood Advocates of Kansas and Mid-Missouri.

At the top of that list is a pending legal challenge to 2011 law, also temporarily blocked by the courts, that includes requiring abortion providers to have admitting privileges at a local hospital.

Anti-abortion group Kansans for Life also recognized the potential impact. Its legislative director, Kathy Ostrowski, suggested pushing for a constitutional amendment to clarify that the Kansas Constitution doesn’t specifically protect abortion rights.

“I can’t understate how horrific this is, and how problematic some litigation might be, under a ruling that the state has a right to abortion,” Ostrowski said Friday.

The law at the center of the case prohibits doctors from using forceps or similar instruments on a live fetus to remove it from the womb in pieces. Such instruments are commonly used in dilation and evacuation procedures, which the New York-based Center for Reproductive Rights has said is the safest and most common abortion procedure in the U.S. in the second trimester.

A similar Oklahoma law also was blocked by a state-court judge. Lawmakers in Nebraska have considered similar measures.

The lawsuit was filed by the Center for Reproductive Rights on behalf of father-daughter Drs. Herbert Hodes and Traci Nauser, who perform abortions at their health center in the Kansas City suburb of Overland Park. Their lawsuit cites only rights granted in the Kansas Constitution, meaning the case will be handled in the state court system.

At issue is vague language in the Kansas Constitution’s Bill of Rights that states that residents have “natural rights,” and that “free governments” were created for their residents’ “equal protection and benefit.”

Shawnee County Judge Larry Hendricks cited that language when blocking the law last year, ruling that the Kansas Constitution protects abortion rights at least as much as the U.S. Constitution. He also said the ban imposes an unconstitutional burden on women seeking abortions.

Republican Gov. Sam Brownback — who was in Washington accepting an award from an anti-abortion group Friday — called on the state Supreme Court to quickly reverse the ruling.

“The court’s failure to protect the basic human rights and dignity of the unborn is counter to Kansans’ sense of justice,” Brownback said. “Seven judges have chosen to create law based upon their own preferences rather than apply the law justly and fairly.”

All four of Brownback’s appointees to the appellate court voted to overturn Hendricks’ decision, along with three judges appointed by Democratic governors, including Chief Judge Thomas Malone. The judges siding with Hendricks included six appointed by Democratic governors and one by a moderate Republican governor.

The dissenting judges wrote that abortion places a pregnant woman’s liberty interest at odds with the unborn child’s right to life, and that balancing those interests is a question of public policy. They also said the Kansas Legislature was “free to restrict abortion procedures to the extent it finds it appropriate — as long as the legislative act does not violate our federal Constitution.”

The case has involved the full appeals court, rather than a three-judge panel, which judicial branch officials believe hasn’t happened since 1989.

During a rally at the Kansas Statehouse marking the 43rd anniversary of Roe v. Wade, David Gittrich with Kansans for Life said his group would work to oust the appellate court judges.

“How much worse can you get?” Gittrich said. “If any type of abortion should be banned, it’s that one.”

Abortion rights supporters said the law needs to be overturned, because it prevents doctors from using their medical judgment.

“Women deserve the right to access necessary reproductive health care without undue governmental interference,” said Julie Burkhart, founder and CEO of Trust Women and South Wind Women’s Center, which provides abortion services in Wichita.