Kansas Supreme Court sets date for abortion lawsuit appeal

Kansas Supreme Court Justices take their seats to hear oral arguments in this file photo from Dec. 10, 2015.

? The Kansas Supreme Court will hear oral arguments on March 16 in a case that challenges a 2015 law banning a certain type of abortion procedure commonly used in second-trimester abortions, a procedure that abortion opponents call “dismemberment” abortions.

The Office of Judicial Administration confirmed that date Wednesday after Chief Deputy Attorney General Jeff Chanay announced it during a legislative committee hearing in which lawmakers were briefed on the status of three ongoing abortion-related lawsuits.

The case challenges a 2015 law that bans a procedure formally known as dilation and evacuation, or D & E.

The case is being watched closely, both in Kansas and nationally, because the plaintiffs challenging the law are asking the court to find that the Kansas Constitution guarantees the same privacy rights as the U.S. Constitution does. Those privacy rights were the basis of the landmark 1973 decision Roe v. Wade, which legalized abortion nationwide.

That’s a critical question in states around the country as the U.S. Supreme Court has become more conservative, and with incoming President-elect Donald Trump promising to appoint justices who will overturn Roe v. Wade.

The lawsuit was filed by Hodes & Nauser MDs, P.A., a father-daughter medical practice in Johnson County that specializes in obstetrics and gynecology.

In June 2015, Shawnee County District Judge Larry D. Hendricks ruled in favor of the plaintiffs and granted a temporary injunction to block the law from taking effect, pending a trial on the merits of the case.

The state then asked the Supreme Court to take the case on direct appeal, but the high court declined and referred it to the Kansas Court of Appeals.

In an unusual move, the appeal was heard by the entire 14-judge Court of Appeals, and in January 2016, the court split evenly, 7-7, on the question of whether the Kansas Constitution guarantees the same privacy rights as the U.S. Constitution.

The effect of that decision was to leave Judge Hendricks’ injunction in place while the case was appealed to the Supreme Court.

In April, the Supreme Court agreed to hear the case, but in a year when five of the seven justices were up for retention, and anti-abortion groups in Kansas were campaigning against four of them, the court did not set a date for oral arguments until Wednesday.

Hodes and Nauser are also the plaintiffs in two other lawsuits pending in state courts challenging other Kansas abortion laws.

One of those cases challenges a 2011 law that would have required abortion clinics to be licensed and comply with a host of other regulations. But those regulations were put on hold when Shawnee County Judge Franklin Theis issued a temporary injunction until the case was decided. Litigation in that case is ongoing.

The other lawsuit challenges a 2013 law that prohibited abortions under certain circumstances and declared within Kansas law that human life begins at fertilization.

A trial court declined to issue an injunction in that case, so that law is currently in effect. But the litigation has been put on hold pending the outcome of the constitutional case now before the Supreme Court.