Kansas Court Strikes Down D&E Abortion Ban Under State Law

Kansas lost its bid to enforce a law that bans most dilation and evacuation abortions—the most common procedure used during the second trimester of pregnancy—because it’s not narrowly tailored to further the state’s compelling interest in preserving life, a state trial court said.

The case was back in the Kansas District Court for Shawnee County after the state supreme court held that the right to abortion is fundamental under the Kansas Constitution, meaning the law had to be evaluated under a “strict scrutiny” test, rather than the undue burden test applicable to abortion cases brought under the federal constitution.

The decision is an important win for abortion rights advocates, but its influence is limited given its reliance on state law. Still, it represents the third loss for anti-abortion groups this week in state law-based challenges, as trial courts in Ohio temporarily blocked the state from enforcing new laws requiring burial of fetal tissue and banning telemedicine abortion.

The Kansas law prohibits what it refers to as “dismemberment” abortions. It imposes both civil and criminal penalties on doctors who knowingly perform D&E abortions.

The state and the abortion providers who challenged the law agreed that it infringes on the state constitution’s fundamental right to abortion. Thus, the district court had to answer only two questions as part of its strict scrutiny analysis—did the state have a compelling government interest supporting the law, and was the law narrowly tailored to serve that interest?

A compelling interest for purposes of the strict scrutiny test is one that is “weighty, urgent, and rare,” the court said. Judge Teresa L. Watson concluded the state met its burden of proving it has a compelling interest “in promoting respect for the value and dignity of human life, born and unborn,” even prior to viability.

But the state didn’t show the D&E ban is narrowly tailored to further that interest, even though it contains exemptions for procedures performed to save a woman’s life or prevent serious bodily impairment, the court said Wednesday. This method is the safest and most widely used for nonviable pregnancies after 13 weeks, it said.

The state didn’t prove there are safe and effective alternatives to D&E abortions, though it argued doctors could induce labor or perform a surgery equivalent to a cesarean section, the court said. The court also rejected the state’s claim that doctors could induce “fetal demise” by one of three procedures before performing an abortion, saying the evidence indicated that there’s little proof those procedures are safe or reliable.

The state’s law was challenged by Hodes & Nauser MDs PA.

Robert Eye, of Lawrence, Kan., Woody Law Firm PC, Center for Reproductive Rights, and Arnold & Porter Kaye Scholer LLP represent the plaintiffs. Thompson Hall PA and the Kansas Attorney General’s Office represent the state.

The case is Hodes & Nauser MDs PA v. Schmidt, Kan. Dist. Ct., No. 2015-CV-000490, 4/7/21.