(Developing: Will be updated as warranted)
The Kansas Supreme Court on Friday affirmed its 2019 landmark ruling that found the right to an abortion is protected by the Kansas Constitution.
“We stand by our conclusion that section 1 of the Kansas Constitution Bill of Rights protects a fundamental right to personal autonomy, which includes a pregnant person’s right to terminate a pregnancy,” Justice Eric Rosen said in writing for the majority.
The Supreme Court’s 2019 ruling extended state constitutional protections to the right to an abortion in Kansas, making it much more difficult for the Legislature to pass new regulations that would limit access to the procedure.
The decision meant new abortion regulations were subject to the heightened legal standard of “strict scrutiny,” requiring the state to not only show it had a compelling interest to pass new regulations but that they were narrowly tailored to meet that interest.
The Supreme Court’s ruling has already been the basis for a Johnson County judge blocking limits on abortion, including a 24-hour waiting period and a 2023 law requiring physicians to tell women that they could have their drug-induced abortions reversed.
And on Friday, the Supreme Court upheld a lower-court ruling permanently blocking abortion clinic regulations that were passed in 2011.
“The decision is as disappointing as it is unsurprising,” Attorney General Kris Kobach said.
“The Kansas Constitution means what the people of Kansas thought the words meant when they voted to ratify those words,” he said in a statement.
“When the word liberty was included in the constitution a century and a half ago, no one in Kansas thought they were creating a right to an abortion.”
The landmark Supreme Court case from 2019 focused on a state law – known as SB 95- banning dilation and evacuation abortions, or what opponents call “dismemberment abortions.”
The procedure was used in about 600, 5% of the 12,318, abortions performed in Kansas in 2022.
The Supreme Court’s decision sent the case back to the district court for further review to determine if the ban was legal in the context that there was a constitutional right to an abortion.
A district judge still found the ban unconstitutional under the new strict scrutiny standard, and former Attorney General Derek Schmidt appealed the ruling in 2021.
Kobach picked up the case when Schmidt left office after running for governor in 2022.
On Friday, the Supreme Court found that the bill banning dilation and evacuation abortions violated the Kansas Constitution’s Bill of Rights.
The state said the law banning dilation and evacuation abortions should withstand constitutional scrutiny.
The state said the law was narrowly tailored to further two compelling government interests – promoting the dignity of human life, “born or unborn,” and the “protection of the medical profession and the medical care provided to Kansans.”
The court disagreed.
“The state has argued S.B. 95 furthers a compelling interest in promoting the value
and dignity of human life, born and unborn, and that it is narrowly tailored to that end. It
offered no evidence to support its claims,” the court ruled.
“In place of evidence, the state made legal arguments and offered its own opinion
on the morality of a D & E,” Rosen wrote.
“It asserted it has a compelling interest in promoting the value and dignity of all human life, born and unborn, because it has such an interest in a person who has been born, and in Kansas, a fetus is synonymous with a person who has been born.”
The court noted that the state said the law banned a “grotesque, demeaning, dehumanizing procedure” that critics called a “dismemberment abortion.”
The state said the legislation was narrowly tailored because it allowed for other methods of second-trimester abortions and included exceptions for preserving the pregnant patient’s life and for preventing irreversible injury to major bodily functions.
“The state insists its interest is compelling because the people of Kansas have ‘openly expressed’ through their elected representatives the notion that life begins at fertilization,” Rosen wrote.
“But that argument runs face first into the August 2022 vote of the people overwhelmingly rejecting a proposed constitutional amendment to give those same elected representatives unfettered regulatory control over abortion.”
Rosen wrote that the state’s articulated interest “is so generic as to mean anything the state wants it to mean when it needs to justify anything it would want to do.
“And that does not protect the fundamental right of bodily autonomy, or for that matter any other fundamental right.
“For example, this phrasing could justify government force to compel someone to donate a body organ if doing so would save a life.”
Abortion rights supporters said the ruling is significant on a national level because of the numbers of state that have banned the procedure since the U.S. Supreme Court overturned the right to an abortion two years ago.
Fourteen states now have completely banned abortion, including nearby Missouri, Oklahoma and Texas, according to the Guttmacher Institute, an abortion-rights think tank.
Guttmacher recently released a new estimate indicating there were 20,700 abortions in Kansas during 2023, up from 12,318 in 2022.
The study revealed that about 13,600 were for out-of-state women, including 6,720 from Texas, 3,310 from Oklahoma and 2,860 from Missouri.
The state won’t release number for 2023 until the very end of 2024 when it releases its annual vital statistics.
“Kansas has become an increasingly important regional site for abortion care given that after the U.S. Supreme Court overruled Roe v. Wade two years ago, folks across the Midwest have lost access to abortion care and are seeking it Kansas,” said Hillary Schneller, senior staff attorney for the Center for Reproductive Rights.
“This decision will end the uncertainly about what laws apply to people seeking abortion care and will incrementally allow access to expand and serve…the really great need not only in Kansas but really across the region,” she said.
Senate President Ty Masterson criticized the court decision, saying it would lead to abortion on demand without any limits.
“If the court is going to strike down basic safeguards for women at abortion clinics, then it’s not a matter of if, but when other protections will also fall,” Masterson said in a statement.
It would not have been unprecedented for a state supreme court to reverse itself on the abortion issue.
Two years ago, the Iowa Supreme Court reversed its 2018 ruling that found the state constitution protected the right to an abortion, although that came after Republican Iowa Gov. Kim Reynolds appointed four of the seven justices to that court.
In Kansas, three of the justices that found the right to an abortion in the 2019 case – Rosen, Marla Luckert and Dan Biles – are still on the court.
A fourth justice – Melissa Standridge – took that side when it was ruled on by the Kansas Court of Appeals.
Justices K.J. Wall and Evelyn Wilson were appointed to the Supreme Court by Democratic Gov. Laura Kelly and were not involved in the 2019 ruling.
Wall did not participate in Friday’s decision, and Wilson authored a concurring opinion.
Justice Caleb Stegall cast the lone dissenting vote in the 2019 case, using images of the white rabbit in Lewis Carroll’s “Through the Looking Glass.”
He authored another dissent Friday, saying that the majority ignores the importance of protecting human life as a compelling interest for passing laws restricting abortion.
“It is noteworthy that the majority cannot bring itself to acknowledge the government’s compelling interest in unborn human life,” Stegall wrote.
“Yes, the majority maneuvers around this problem by skipping it in favor of its narrow tailoring analysis.
“But the truth is, the majority doesn’t answer this question because it is so decidedly troublesome to the majority’s new section 1 regime.
“For the majority, an interest in protecting unborn life — including the dignity of that life —is only ‘aspirational’ with ‘many nuances and facets’ that have ‘potentially far-reaching precedential effect.'”
“For those unfamiliar with legalese, this translates to, ‘We don’t want to tie our hands with such inconveniences,'” Stegall wrote.
The ruling comes less than two years after about 60% Kansas voters rejected a constitutional amendment that would have established that there was no right to an abortion in the Kansas Constitution.
During the oral arguments last year, Biles raised the issue of the vote on the constitutional amendment.
“I think that’s the elephant in the room,” Biles said.
“How do we factor that in when you’re asking us to change our interpretation of the Kansas Constitution when the people spoke so forcefully?”
Solicitor General Anthony Powell, a former state legislator and state appellate judge, said it was questionable whether the public endorsed the court’s ruling at the ballot box in 2022.
“Sometimes the voters surprise you and you don’t always know for sure what they’re saying by the way they vote,” Powell told the court.
But Biles pressed again, asking whether the result of the 2022 vote on the Value Them Both amendment answered that question.
He said the ballot question was clear about whether voters should leave in place the “recently recognized right to an abortion.”
“That’s a pretty plain disclosure to the people as to what’s going on here, and a whole bunch of people voted,” Biles said.
Powell said he would be persuaded if the political campaign had been centered on whether the right to an abortion should be part of the constitution, not on whether passage would lead to a ban of the procedure.
Under questioning from Stegall, Powell said the public vote should not be relevant to the state Supreme Court’s deliberation in this case.
“As a matter of law, constitutional interpretation, a public vote doesn’t matter, particularly when the constitution hasn’t changed,” Powell said.
“It might matter if the language was changed,” he said.
“The court is charged with reading the words of the constitution and interpreting according to what the words say.”
