Topeka Kansas might chart its own legal path on abortion through a lawsuit that could turn a state in which the anti-abortion movement has won a long string of legislative victories into fairly friendly territory for abortion rights.
The state Supreme Court heard arguments this past week in a legal challenge to a 2015 law that bans a common second-trimester procedure. The key issue is whether the Kansas Constitution protects abortion rights independently of the U.S. Constitution.
If the justices say the state constitution does, Kansas courts could strike down abortion restrictions that have been or might be upheld by federal courts.
A look at the case and its ramifications:
How did the question arise?
Kansas was the first state in the nation to ban what anti-abortion groups call “dismemberment abortion,” or using forceps or similar instruments on a live fetus to remove it from the womb in pieces. Such instruments are used in dilation and evacuation, which the New York-based Center for Reproductive Rights says is the safest and most common way of terminating a second-trimester pregnancy.
A trial-court judge who temporarily blocked the ban ruled that abortion rights are protected by broad language in the Kansas Constitution’s Bill of Rights, which says residents’ “natural rights” include life, liberty and the pursuit of happiness and that governments are formed for people’s “equal protection.” No Kansas court has previously made such a ruling.
Will the Kansas Supreme Court say the state constitution protects abortion rights?
Four of the court’s seven justices on the state’s highest court expressed skepticism with the state’s argument that the Kansas Constitution provides no protection for abortion rights.
The state and abortion opponents argue that there’s no evidence that the men who drafted the Kansas Constitution in 1859 — an era when many states were criminalizing the procedure — meant for the state’s Bill of Rights to protect abortion rights. But the same could be said for the U.S. Constitution ahead of the U.S. Supreme Court’s landmark 1973 Roe v. Wade decision legalizing abortion nationwide. That ruling said access to abortion was an extension of women’s right to privacy.
Janet Crepps, a Center for Reproductive Rights attorney representing the two doctors, argued that constitutional rights evolve to reflect changes in society and “the general march of progress.”
What happens if the court says the Kansas constitution protects abortion rights?
The only certainty appears to be that Kansas courts would deal with additional legal disputes on abortion.
The challenge to the 2015 law has yet to go to trial, and the state Supreme Court would have to consider whether the trial-court judge was correct in also determining that allowing the state to enforce the ban would impose an undue burden on women seeking abortions. Officials for the anti-abortion group Kansans for Life contend the evidence collected before the judge ruled was “sketchy.”
Also, abortion providers would almost certainly file other lawsuits to challenge other restrictions, including existing ones.
How could Kansas chart its own legal path?
If the Kansas Constitution protects abortion rights, the state Supreme Court must consider what standard applies in reviewing abortion restrictions.
The U.S. Supreme Court has said restrictions cannot create an undue burden for women seeking abortions. It’s a rule unique to abortion cases that allows courts to consider whether concerns about access to abortion are overridden by government interests such as regulating medicine and promoting the dignity of human life.
Crepps argued for a higher standard, making access to abortion to a “fundamental” right. Doing so would force the state to show that it had a compelling interest in enacting a restriction and that it narrowly tailored its law to solving the problem it identified.
State Solicitor General Stephen McAllister says such a standard could be “in practice, generally fatal” to new restrictions.