KS Supreme Court expected to decide if Kansas constitution protects abortion

Published: Apr. 25, 2019 at 7:03 PM CDT
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More than two years after both sides stated their case before the Kansas Supreme Court, justices are ready to render their decision on a controversial abortion procedure.

The Office of Judicial Administration announced they will announce their verdict in Hodes & Nauser, MDs, PA, et al v. Derek Schmidt, et al. The case challenges a 2015 law against a common second-trimester abortion, dilation and extraction, commonly called by opponents as ‘dismemberment’ abortions.

The stakes may be even higher though. During oral arguments, in March 2017, the justices appeared receptive to declaring for the first time that the state constitution recognizes abortion rights. A majority of them seemed skeptical of the state’s argument against the general idea as it defended the specific ban.

The first-in-the-nation prohibition on the procedure became a model for abortion opponents across the country. It was model legislation drafted by the National Right to Life Committee, who, at the time of the case, said similar measures was model legislation drafted by the National Right to Life Committee.

The lawsuit against the Kansas law was filed by Drs. Herbert Hodes and Traci Nauser, who operate a women's health center in the Kansas City suburb of Overland Park. A Shawnee County district judge's ruling put the law on hold beforehand; the Kansas Court of Appeals split 7-7, allowing the judge's decision to stand.

Their verdict will be delivered on Friday at approximately 9:30 a.m.


The key issue is whether the Kansas Constitution protects abortion rights independently of the U.S. Constitution, which would allow state courts to invalidate restrictions that have been upheld by the federal courts.

Abortion opponents fear that such a decision by state courts could block new laws — or invalidate existing ones. Janet Crepps, an attorney for the New York-based Center for Reproductive Rights, which is representing the doctors, argued at the time that it's important for Kansas residents to know what rights their constitution protects.

"The federal constitutional protection seems to ebb and flow with the political tide," Crepps contended.

Abortion-rights supporters contend broad language in the state constitution's Bill of Rights protects a woman's right to obtain an abortion. The Bill of Rights says residents have "natural rights" including "life, liberty and the pursuit of happiness" and that "free governments" were created for their "equal protection and benefit."

The state argues there's no evidence that when the constitution was written in 1859, its drafters contemplated the issue in a legal environment in which abortion generally was illegal.


During oral arguments, four of the court's seven justices peppered state Solicitor General Stephen McAllister with questions about the state constitution affording no protections for abortion rights now. Justice Dan Biles asked McAllister whether the state would face any limits on its power to restrict abortion, so that it could force a woman to carry a pregnancy to term even if she faced dying.

As McAllister struggled to answer, Justice Carol Beier said, "The uncomfortable answer you're trying not to give is, 'No.'"

Yet the justices appeared to struggle with what standard the state courts would use in reviewing abortion restrictions. McAllister noted that after the U.S. Supreme Court issued its landmark Roe v. Wade decision in 1973, more than four decades of contentious court battles over abortion followed.

And Justice Caleb Stegall, the only appointee of conservative Republican Gov. Sam Brownback, worried about Crepps' argument that constitutional rights evolve to reflect a changing society and "the general march of progress."

"How is this anything other than just a blank check to judges?" Stegall said.

Abortion opponents worried enough about the lawsuit's outcome that they waged an unsuccessful, pre-emptive campaign to oust four justices from Kansas' highest court during the 2016 election, including Beier and Biles.

Six justices were appointed by Democratic or moderate Republican governors. The justices have faced strong criticism in the past from the Republican-controlled Legislature and Brownback over past rulings in a wide variety of cases.