Opinion released on anniversary of Roe v. Wade decision
By Roxana Hegeman
Associated Press
WICHITA, Kan. (AP) — The Kansas Court of Appeals refused Friday to allow the state’s first-in-the-nation ban on a common second-trimester abortion method to take effect, saying in a split decision that the Kansas Constitution protects abortion rights independent of the U.S. Constitution.
The 7-7 ruling was released on the anniversary of the U.S. Supreme Court’s Roe v. Wade decision. Tie votes from the appeals court uphold the lower-court ruling being appealed, meaning that seven appellate judges agreed with a county judge who said the Kansas Constitution’s Bill of Rights has general statements about personal liberties that create independent protections for abortion rights.
The decision is expected to be appealed to the Kansas Supreme Court.
The ruling stems from a lawsuit filed by two abortion providers who said the 2015 law is an unconstitutional burden on women seeking to end their pregnancies. The lower court temporarily put the law on hold during the legal fight, which is being closely watched for its potential to affect the state’s other restrictive abortion laws.
A finding that the Kansas Constitution protects abortion rights independently of the U.S. Constitution would allow the state’s courts to protect those rights more than the federal courts have done. Abortion opponents fear that state courts could then invalidate restrictions in Kansas that the federal courts would allow.
The law prohibits doctors from using forceps or similar instruments on a live fetus to remove it from the womb in pieces. Such instruments are commonly used in dilation and evacuation procedures, which the Center for Reproductive Rights has said is the safest and most common abortion procedure in the U.S. in the second trimester.
A similar Oklahoma law also was blocked by a state-court judge, while lawmakers in Nebraska have considered similar measures.
At issue in Kansas is whether broad legal language about individual liberty protects abortion rights. The Kansas Constitution states that residents have “natural rights,” and that “free governments” were created for their residents’ “equal protection and benefit.”
During arguments last month before the full appeals court, several judges expressed skepticism that the phrasing could be interpreted to specifically protect abortion rights. The case has involved all of the appeals court’s judges, rather than the normal three-judge panel, which judicial branch officials believe hasn’t happened since 1989.
A Shawnee County judge cited the same constitutional language when blocking the law last year, ruling that the Kansas Constitution protects abortion rights at least as much as the U.S. Constitution. The judge also ruled that the ban imposes an unconstitutional burden on women seeking abortions.
Kansas law calls the banned method “dismemberment abortion,” echoing a description coined by anti-abortion groups. But none of the attorneys or judges used such a phrase during arguments before the court last year.
The lawsuit was filed by father-daughter Drs. Herbert Hodes and Traci Nauser, who perform abortions at their health center in the Kansas City suburb of Overland Park.
