Internet Explorer 11 is not supported

For optimal browsing, we recommend Chrome, Firefox or Safari browsers.

Right to Abortion Protected by State Constitution, Kansas Supreme Court Rules

Kansas' long, bitter fight over abortion entered an intense new phase Friday after the state Supreme Court ruled that women have the right to end a pregnancy.

Supreme Court Kavanaugh
An abortion rights protester holds a wire coat hanger and a sign that reads "We Won't Go Back."
(AP/Ted S. Warren)
By Jonathan Shorman and Lara Korte

Kansas' long, bitter fight over abortion entered an intense new phase Friday after the state Supreme Court ruled that women have the right to end a pregnancy.

The court found for the first time that the Kansas Constitution -- in addition to the U.S. Constitution -- protects the right to an abortion. Republican lawmakers vowed to pursue an amendment to overturn the decision.

In a frequently plain-spoken opinion, the justices said a woman's rights under the state constitution allow her "to make her own decisions regarding her body ... decisions that include whether to continue a pregnancy."

The potential consequences of the decision are sweeping for a state that has often been at the center of the struggle over abortion for 30 years, from the Summer of Mercy protests to the murder of abortion doctor George Tiller.

The 6-1 majority opinion means that unless the state constitution is changed, abortion will remain legal in Kansas even if abortion rights are one day overturned at the federal level.

It also means additional scrutiny for abortion restrictions approved by Kansas lawmakers in recent years.

And it threatens to upend the final days of the legislative session. Anti-abortion lawmakers are expected to try hard to advance an amendment to change the constitution.

"I think this puts a whole load on the pro-life movement," said Mark Gietzen, who heads the Wichita-based Kansas Coalition for Life and organizes a daily protest at the Trust Women clinic, which provides abortions. "We have to now do an amendment to the constitution. There's no other choice."

House Speaker Ron Ryckman, an Olathe Republican, said his chamber is working to develop a solution that allows voters to decide "whether Kansas continues as a pro-life state or becomes a pro-abortion state."

Senate President Susan Wagle, a Wichita Republican, said nowhere in the state constitution is there a "right to the violent act of abortion." She labeled the Supreme Court as liberal and activists and said the justices "showed just how out of touch they are with Kansas values."

Kansas Attorney General Derek Schmidt, whose office defended the law, called the implications of the ruling "breathtaking" and said it "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."

Democrats and abortion rights supporters welcomed the decision. The Supreme Court had effectively drawn a line in the sand in favor of abortion rights.

"This sends a strong signal to our legislators that they can no longer use politically motivated and medically unnecessary restrictions to block women from the health care they need and deserve," said Rachel Sweet, Planned Parenthood's regional director of public policy and organizing.

Gov. Laura Kelly, a Democrat and abortion rights supporter, said in a statement that while federal law had long guaranteed the right of women to make their own healthcare decisions, "I'm pleased that the Kansas Supreme Court's decision now conclusively respects and recognizes that right under Kansas law as well."


'I don't think it's over'

Kansas joins nine other states with constitutions that have been interpreted to protect abortion rights. Court rulings in West Virginia and Tennessee have also affirmed the right to an abortion but their constitutions were later amended.

Abortion rights opponents have had an easy time in recent years summoning big majorities in the Kansas Legislature to approve fresh restrictions. But a constitutional amendment needs to clear a high bar: two-thirds support from both the House and the Senate, followed by majority approval from voters statewide.

Lawmakers would set the date of the statewide election, and Kelly wouldn't be able to veto the amendment.

"I don't think it's over. I don't think this is the final word. I certainly hope and pray that we don't go back to those dark days," Rep. Susan Humphries, a Wichita Republican, said.

Questions emerged Friday over how quickly lawmakers could advance an amendment. Gietzen said it would be "humanly impossible" to get a constitutional amendment through the Legislature in the final days of 2019 session. Lawmakers resume their work on May 1 and typically adjourn in May.

But he said the organizational work will start now so the amendment could be ready for the Legislature next year and passed in time for the 2020 election ballot.

"2019 has to be grass-roots (organizing)," Gietzen said. "It's where it has to start, with the people. We're still a government of the people, not the government of a misguided court."

A proposed amendment would almost certainly trigger an intense debate among Kansans, with both sides campaigning aggressively in the months and weeks leading up to the vote.

Before the federal Roe v. Wade decision in 1973, states had the power to decide whether to allow abortion. Approval of the amendment would mean the Legislature could ban abortion in Kansas if the federal decision is ever overturned.

Both abortion rights supporters and opponents believe the U.S. Supreme Court is more likely to reverse Roe now than in the past because conservatives have a clear majority with the addition of Justice Brett Kavanaugh.

Julie Burkhart, the founder and chief executive of Trust Women, said she doesn't think an effort to amend the state constitution would succeed, even if lawmakers have enough support to send it to voters. While anti-abortion groups hold enormous power at the Statehouse, polls have shown the majority of Kansans don't want to ban abortion, she said.

"I just don't see that the people of this state hold those beliefs," she said.

According to a Fox News voter analysis of the 2018 Kansas governor's race, 54 percent of voters said abortion should be legal in all or most cases, while 46 percent said it should be illegal in all or most cases.


Abortion law spurred decision

Friday's decision stemmed from a 2015 law banning dilation and evacuation, a common procedure in second-trimester abortions that involves using surgical tools to remove the fetus. Opponents call it a "dismemberment abortion."

The ban -- the first of its kind to be passed by any state -- has not gone into effect during litigation. The Supreme Court on Friday kept an injunction in place and told a lower court to reevaluate the law based on its decision.

The Supreme Court's majority opinion found that section 1 of the Kansas Constitution's Bill of Rights protects every person's natural "right of personal autonomy" and that includes a woman's right to choose an abortion.

"Today we hold our Kansas Constitution's drafters' and ratifiers' proclamation of natural rights applies to pregnant women. This proclamation protects the right to decide whether to continue a pregnancy," the justices said in the court's unsigned majority opinion.

Justice Caleb Stegall, in his dissent, said the court was issuing its "most significant and far-reaching decision" ever.

"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 decision will cast a shadow over an expected to push to override Kelly's veto of a bill that would require abortion clinics to tell women about how to potentially reverse a medication abortion. It also may open other restrictions on abortion, such as font and type size requirements for information provided in abortion clinics, to new legal challenges.

The court's decision -- spurred by a lawsuit from physicians Herbert Hodes and Traci Nauser -- was one of the most-anticipated decisions in recent Kansas history. The justices took more than two years to issue an opinion after holding oral arguments in March 2017.

The Center for Reproductive Rights filed the lawsuit in 2015 on behalf of the physicians, who work at the Center for Women's Health in Overland Park. The suit argued the law illegally interfered with the right to an abortion and that Kansas couldn't ban dilation and evacuation abortions because of previous U.S. Supreme Court rulings.

The case reached the state Supreme Court after a lower-court judge ruled the state constitution protects the right to an abortion. The Kansas Court of Appeals upheld that ruling after an effective tie. Seven judges sided with the state and seven sided with the doctors, though one issued a separate concurring opinion.

The law was a centerpiece anti-abortion achievement for Sam Brownback, who signed numerous anti-abortion bills during his time as governor. A spokeswoman for Brownback didn't respond to a request for comment Friday.

Contributing: Dion Lefler of The Eagle and Lindsay Wise of McClatchy DC. Korte reported from Kansas City.

(c)2019 The Wichita Eagle (Wichita, Kan.)

Special Projects