TOPEKA, Kansas — The Kansas Supreme Court on Friday struck down state laws that more strictly regulate abortion clinics than other health care providers and ban a common second-trimester procedure, reaffirming its holding that the state Constitution protects access to abortion.
The Kansas Supreme Court’s rulings in two separate cases signal that the state’s Republican-controlled legislature may face tougher restrictions on regulating abortion than GOP lawmakers anticipated and suggest that other restrictions could fall. Lawsuits in lower state courts already challenge restrictions on medication abortions, a ban on doctors using teleconferencing to meet with patients, rules on what doctors must tell patients before an abortion and a requirement that patients wait 24 hours after being informed about a procedure to terminate their pregnancy.
“We maintain that Article 1 of the Bill of Rights of the Kansas Constitution protects a fundamental right to personal autonomy, which includes the right of a pregnant woman to terminate a pregnancy,” Justice Eric Rosen wrote for the majority in the decision on Dilation and Evacuation, also known as D&E.
Friday’s decisions were both 5-1, with Judge KJ Wall not participating.
Judge Caleb Stegall — the lone dissenter in both decisions — was appointed by conservative Republican Gov. Sam Brownback and is widely considered the court’s most conservative member. He was the lone dissenter in the 2019 decision.
The Kansas Supreme Court has in a decision from 2019 that abortion access is a matter of bodily autonomy and a “fundamental” right under the state constitution. Voters in August 2022 will also decidedly rejected a proposed amendment that would explicitly declare abortion non-fundamental and would give state legislatures the ability to severely restrict or ban it.
Lawyers for the state had urged the judges to overturn their 2019 ruling and uphold the two laws, which have not been enforced because of the legal battle over them. The state’s attorney general, appointed by Republican Attorney General Kris Kobach, had argued that the 2022 vote did not matter in determining whether the laws could stand.
The court disagreed, handing abortion rights advocates a major legal victory.
Kansas has become an outlier among states with Republican-controlled legislatures since the U.S. Supreme Court it’s the Dobbs decision in June 2022, allowing states to ban abortions entirely. That has led to an influx of patients from states with stricter laws, notably Oklahoma and Texas. The Guttmacher Institute, which supports abortion rights, projected last month that approximately 20,000 abortions were performed in Kansas in 2023, up 152% from 2020.
Kansas bans most abortions until the 22nd week of pregnancy, but requires minors to get written consent from their parents or guardians. Other requirements, including the 24-hour waiting period and what a health care provider must tell patients, are suspended. A lower court is considering an appeal by health care providers.
Abortion opponents argued ahead of the August 2022 vote that not amending the state constitution would undo longstanding restrictions put in place by previous GOP governors. Kansas saw a flurry of new restrictions under former Republican Gov. Sam Brownback from 2011 to 2018.
The health and safety rules specifically targeting abortion providers were enacted in 2011. Advocates said they would protect women’s health — even though there was no evidence at the time that such rules had led to better health outcomes in other states. Providers said the real goal was to drive them out of the market.
The other law was the first of its kind in the country when it passed in 2015 and covers a specific type of dilation and evacuation, or D&E, procedure performed during the second trimester.
According to statistics from the State Health Service, there are about 600 D&E-procedures were performed in Kansas in 2022, accounting for 5% of all abortions in the state. About 88% of abortions in the state occurred in the first trimester. The state has not yet released statistics for 2023.
The d&A ban on the E-procedure would have forced health care providers to use alternative methods, which are riskier for the patient and more expensive, according to the Center for Reproductive Rights, an abortion rights advocacy group.
The 2019 ruling came in the early stages of litigation over the 2015 ban. The justices put the law on hold but sent the case back to the district court to further examine the ban. A first-instance judge said the law could not stand.
Three of the court’s seven justices have joined the court since the 2019 decision. All three were appointed by Democratic Gov. Laura Kelly, a staunch supporter of abortion rights, but one of the three, Judge KJ Wall, removed himself from the suitcases.
