Abortion Access in Kansas on the Line at State’s Top Court

Kansas has asked the state’s top court to reinstate a ban on dilation and evacuation abortions, the most common method used during the second trimester of pregnancy, and to revive provisions that tightened facilities requirements for abortion clinics.

Both cases argued Monday present the Kansas Supreme Court with its first opportunity to review abortion-related questions since the US Supreme Court declared that there’s no federal constitutional right to end a pregnancy before viability.

While Dobbs v. Jackson Women’s Health Organization doesn’t directly affect the state-constitutional questions, antiabortion advocates are hoping it will influence the state justices’ decisions.

But abortion rights advocates have strong arguments for upholding permanent injunctions that prohibit the state from enforcing the laws and regulations at issue—the Kansas top court’s 2019 decision recognizing bodily autonomy as a fundamental right under the Kansas Constitution that includes a right to abortion, and a 2022 election in which voters resoundingly rejected a proposed constitutional amendment that would have overturned the ruling.

Together, they made for a long day for Kansas Solicitor General Anthony Powell, whose scheduled 20-minute oral argument in the first case expanded to over an hour.

Powell asked the court to let the D&E ban take effect but was constrained by the record on appeal that, according to Justice Dan Biles, contained little evidence of how the law served the state’s asserted compelling interest in preserving the dignity of human life.

Abortion remains legal in Kansas up until 22 weeks of pregnancy, but there are several restrictions in place, including a 24-hour delay, state-mandated consent forms, and a bar on telemedicine abortions. Lawmakers are considering even more limits.

Reasons for Appeal?

Biles’ questions followed those of Justices Caleb Stegall and Eric S. Rosen over why the state brought the appeal in the first place. Stegall asked if the state is seeking a much-delayed reconsideration of the 2019 decision, while Rosen asked if Powell was trying to prove that the prior ruling that was clearly wrong.

The state raised the same points it argued in 2019—there’s nothing really new here, Rosen said. Powell tried several times to bring in evidence from other courts that have found D&E abortions to be inhumane, but the justices weren’t having it.

Powell also told the justices he wasn’t certain what impact the 2022 vote has on this case. It doesn’t necessarily show that voters support abortion, he said. Biles responded that the “people have spoken forcefully,” while Rosen added the vote was “pretty plain.”

Alice Wang, arguing on behalf of the abortion provider plaintiffs, urged the court to stand by its earlier decision. The case went back to the trial court after that ruling, thereby giving the state an opportunity to present evidence that the ban was narrowly tailored to serve a compelling state interest. It didn’t do so, she said. Wang is a staff attorney with the Center for Reproductive Rights.

Facilities Regulations

The state also asked the court to reinstate a number of laws and implementing regulations dating back to 2011 that imposed requirements on abortion facilities in addition to those that already apply to ambulatory surgical centers. The justices seemed more divided on this subject—with Stegall asking plaintiffs attorney Caroline Sacerdote if all regulations of the medical profession should have to satisfy a strict scrutiny standard.

Saredote, also with the Center for Reproductive Rights, said it would be hard to answer that question in the abstract, but here the regulations specifically are unique to abortion providers and interfere with a fundamental right.

Also participating in the argument were Chief Justice Marla Luckert and Evelyn Z. Wilson and Melissa Taylor Standridge.

Justice Keynen “K.J.” Wall Jr. didn’t participate.

The cases are Hodes & Nauser v. Kobach, Kan., No. 124130, oral arguments 3/27/23; Hodes & Nauser v. Stanek, Kan., No. 124051, oral arguments 3/27/23.