UPDATED: Kansas Supreme Court rules right to abortion embedded in state Constitution

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(Updated to recast lead; includes more widespread reaction and comments from Kansans for Life about plans for a constitutional amendment)

For the first time in state history, the Kansas Supreme Court ruled that the state constitution protects the right to an abortion, a decision that will likely stoke a new battle over abortion in the Legislature.

In a decision that took more than two years to reach, the state’s highest court found that the right to an abortion is enshrined in the Kansas Constitution’s Bill of Rights.

The Bill of Rights “affords protection of the right of personal autonomy, which includes the ability to control one’s own body, to assert bodily integrity, and to exercise self-determination,” the court wrote.

“This right allows a woman to make her own decisions regarding her body, health, family formation, and family life — decisions that can include whether to continue a pregnancy.”

The constitution says Kansans have “natural rights,” which include “life, liberty and the pursuit of happiness.” It also says that “free governments” were founded for the “equal protection and benefit” of the people.

“We are now asked: Is this declaration of rights more than an idealized aspiration? And, if so, do the substantive rights include a woman’s right to make decisions about her body, including the decision whether to continue her pregnancy?

“We answer these questions, ‘Yes.’ ”

The decision is significant because it potentially has legal implications for a string of abortion restrictions that were passed and enacted when Sam Brownback was governor.

During his two terms as governor, Brownback signed bills into law that, among other things, banned tax breaks for abortion providers, banned sex-selection abortions and declared that life begins at fertilization.

Bownback signed five bills in his first year in office aimed at curbing abortion. They included rules that almost led to a shutdown of the state’s abortion clinics before a judge put the regulations on hold. The case is still pending in court.

In his second year, Brownback signed a bill into law allowing pharmacists to refuse to provide drugs they believe might cause an abortion.

The high court’s decision also potentially affects ongoing litigation over telemedicine abortions and the state’s wrongful birth statute, which bans lawsuits against physicians who don’t tell parents about their unborn child’s birth defects so they can end a pregnancy. The decision also could affect a lawsuit brought in state court against the same 2013 legislation that banned tax breaks for abortion providers.

It’s also murky how such a ruling would affect a controversial bill that Gov. Laura Kelly just vetoed that requires physicians to tell women that they can have a drug-induced abortion reversed.

Lawmakers are expected try to override the veto, but there have already been hints of a legal challenge if the bill is enacted.

“The far-reaching implications of the court’s decision are breathtaking,” Attorney General Derek Schmidt said in a statement late Friday afternoon.

“Wholly uninhibited by traditional judicial restraint, the court’s sweeping and voluminous language foreshadows an ever-expanding role for Kansas courts in public policy questions that for the first 158 years of state history were reserved for Kansans to settle through the democratic process,” he said.

The ruling Friday gives women new protections under the state constitution that might be used in ongoing cases as well as existing laws that have been passed, said Genevieve Scott, senior staff attorney for the Center for Reproductive Rights.

“This decision makes clear that the relentless attacks on abortion in Kansas — as demonstrated by the number of ongoing cases — will face a very high bar and that women in Kansas have strong constitutional protections,” Scott said in an interview.

“This will certainly make it possible for restrictions and access to abortion to be challenged under the state constitution where women have now been recognized as having a fundamental right to access abortion,” she said.

Abortion opponents expressed fear that legislation intended to protect the unborn would now face heightened legal threats.

“The potential consequence of the decision are grave, threatening all laws that the state of Kansas has enacted protecting women and unborn children in Kansas,” Republican state Sen. Mary Pilcher-Cook said in a statement.

“The people must now rise up and make their voices heard to fight against this tyranny by the court,” she said.

Justice Caleb Stegall, former legal counsel to Brownback, wrote a dissenting opinion in the case, at one point evoking Lewis Carroll’s “Through the Looking Glass” to call the decision a “follow-the-white-rabbit experience.”

“The majority’s decision is so consequential because it fundamentally alters the structure of our government to magnify the power of the state — all while using that power to arbitrarily grant a regulatory reprieve to the judicially privileged act of abortion,” Stegall wrote.

“In the process, the majority abandons the original public meaning of section 1 of the Kansas Constitution Bill of Rights and paints the interest in unborn life championed by millions of Kansans as rooted in an ugly prejudice.”

The court’s decision promises to set off a battle in the Legislature over whether to amend the constitution so that lawmakers could control decisions over abortion, especially if the U.S. Supreme Court overturns the historic Roe v. Wade decision.

Kansans for Life said Friday it doesn’t expect to push for a constitutional amendment until 2020 to better prepare their case, relieving lawmakers from addressing the issue during the upcoming wrap-up session that will be dominated by taxes, Medicaid expansion and the budget.

“We pledge to work to enact a constitutional amendment, which will allow the people of Kansas to reclaim the Kansas Constitution and restore its fundamental truth as a document that protects the life and liberty of all human beings in Kansas,” said Republican state Sen. Ty Masterson, chair of the Truth Caucus.

The amendment would need support from two-thirds of the Legislature to win approval. It also would need to be ratified by voters at the polls.

The case stems from a 2015 challenge to a state law banning a common second-trimester abortion that critics refer to as a “dismemberment abortion.”

Four years ago, Kansas became the first state in the country to effectively ban what is known as the dilation and evacuation procedure, which was used in about 7 percent of all abortions performed in Kansas during 2018. The procedure is used in 95 percent of all second-trimester abortions.

Eleven states have enacted so-called dismemberment laws since Kansas passed its legislation in 2015, according to the Guttmacher Institute, which tracks reproductive health issues.

Of those laws that have been enacted, they are only in effect in Mississippi and West Virginia, Guttmacher reports.

Enforcement of the others has either been blocked by a court or doesn’t start until later.

The Kansas bill refers to the procedure as a “dismemberment abortion,” defined as a physician removing a living “unborn child one piece at a time” by using “clamps, grasping forceps, tongs (and) scissors” that “grasp a portion of the unborn child’s body in order to cut or rip it off.”

A district court judge found that the right to an abortion was protected in the state Constitution’s Bill of Rights when he blocked enforcement of the law.

It was the first time in state history that a judge found that a right to an abortion was embedded in the state constitution.

A state appeals court deadlocked in the case, leaving the lower court decision in place.

The Supreme Court’s decision upholds the temporary injunction blocking enforcement of the law and returned it to the lower court for full resolution of the case.

“While federal law has long guaranteed every woman the right to make their own medical decisions in consultation with their healthcare providers, I’m pleased that the Kansas Supreme Court’s decision now conclusively respects and recognizes that right under Kansas law as well,” Gov. Laura Kelly said in a statement.

Senate President Susan Wagle blasted the court’s decision.

“Today, the liberal, activist Supreme Court showed just how out of touch they are with Kansas values,” Wagle said in a statement.

“Their ignorance to acknowledge that life in the womb, ordained by our creator and recognized by our medical community, as a separate life should … be protected by our laws,” Wagle said.

Planned Parenthood said the Supreme Court’s decision puts legislators on notice.

“This sends a strong signal to our legislators that they can no longer use politically motivated and medically unnecessary restrictions to block women from health care they need and deserve,” Planned Parenthood said.

What’s happening with the Kansas abortion law reflects the legal strategy playing out across the country in abortion cases.

Abortion rights supporters have brought cases under various state constitutions challenging restrictions on the procedure.

“Some state constitutions provide greater protection to people within those states,” according to the New York-based Center for Reproductive Rights.

Just last year, for instance, the Iowa Supreme Court ruled that women have a fundamental right to an abortion under that state’s constitution. The decision overturned a 72-hour waiting period requirement passed by Iowa lawmakers in 2017.

The Iowa Supreme Court’s decision played a key part in a lower-court ruling from earlier this year when a district court judge ruled against the state’s fetal heartbeat law, the most restrictive abortion limit in the country. The judge cited the state Supreme Court ruling in striking down the Iowa law.

“Where the state constitution recognizes rights to privacy or gender equality that are more extensive than those recognized in the federal Constitution, state constitutional challenges can provide an effective strategy for defending and expanding reproductive rights,” the Center for Reproductive Rights writes on its website.

The group, for instance, says it has successfully challenged abortion restrictions using the state constitutions in Alaska, Florida and Montana.

It also says it won court orders requiring Minnesota and West Virginia to fund medically necessary abortions in their state Medicaid programs.

“Each of these victories accomplished a result that would not have been available under the federal constitution,” the group said.

However, states have fought back with efforts to change the state constitutions to take the abortion cases out of the courts’ hands.

There was an effort at the Iowa statehouse this year to pass a constitutional amendment nullifying the state Supreme Court’s ruling on abortion. It ultimately died during the session.