Kansas Attorney General Derek Schmidt is asking the state Supreme Court to put off all proceedings in his appeal of the court’s landmark ruling that found the right to an abortion is embedded in the Kansas Constitution.
Schmidt filed a motion Wednesday requesting a stay of all appellate proceedings until after Kansas voters decide next August whether to pass a constitutional amendment that would overturn the court’s 2019 abortion decision.
The attorney general is hoping Kansas voters will approve the amendment, which in turn would undercut the legal basis for the lawsuit challenging a state law banning some dilation and evacuation abortions.
A Shawnee County district judge found that the 2015 law violated the state constitution’s Bill of Rights as interpreted by the Kansas Supreme Court in its 2019 decision.
“If approved by the voters, the Value Them Both Amendment would provide that there is no state constitutional right to an abortion, thus eliminating the legal basis for this suit,” Solicitor General Brant Laue wrote in the brief filed with the court.
“Proceeding with this appeal while a vote on The Value Them Both Amendment is pending, risks needlessly wasting the time and resources of the parties and this court,” Laue wrote.
“If The Value Them Both Amendment is adopted, any additional proceedings will have been for nothing,” he said.
Teresa Woody, co-counsel for the physicians who challenged the law, said she plans to oppose the attorney general’s request.
“It’s kind of like saying, ‘Oh next year a law might pass that might change things, but why don’t we tell the court not to do its job.
“It’s really ridiculous, quite frankly,” Woody said.
The attorney general made the same request in district court, but was unsucessful, Woody said.
“This is the same argument that they made in the district court that was rejected there, and we believe it should be rejected at the Supreme Court as well.”
Some legal experts believe that Schmidt’s appeal was against tough odds without the constitutional amendment, especially since the court decided the case two years ago.
The court decided the abortion case 6-1. The lone dissenter was Justice Caleb Stegall, who was appointed by former Gov. Sam Brownback.
Three of the justices ruling for abortion rights in that case have been replaced after retiring from the court.
Democratic Gov. Laura Kelly, a staunch supporter of abortion rights, has appointed three of the court’s seven justices since taking office in 2019.
Two of the governor’s appointments – Evelyn Wilson and Melissa Standridge – were appointed over the objections of Kansans for Life.
It was that ruling that was appealed and upheld by the state Supreme Court.
“It is very rare for a high court to overrule a decision in the span of a few years and virtually unheard of in the same litigation,” said University of Kansas law professor Richard Levy.
“The general principle of ‘stare decisis’ applies, and courts do not overrule their prior decisions except in unusual circumstances,” Levy wrote.
“Although the Kansas Supreme Court does at times overrule its own precedents, that is pretty rare and especially so in such a short time span.”
Levy argued that it might make sense for the court to agree to a stay.
“If the enforcement of the law at issue in this case is currently barred by a judicial order, then staying proceedings will mean that abortion rights would be protected pending the outcome of the election,” Levy said in an email.
“A stay on further briefing might then make sense as a means of avoiding wasted costs for both sides,” he said.