TOPEKA, Kan. — Kansas Supreme Court justices repeatedly pointed to last year’s overwhelming vote to uphold state-level abortion rights Monday, indicating they’re highly unlikely to back off their 2019 decision establishing the right to the procedure in the state.
In oral arguments on two abortion cases, justices appeared skeptical of the Kansas attorney general’s office’s arguments that they should overturn their landmark decision and allow two laws restricting abortion to take effect years after their passage under former Gov. Sam Brownback.
The arguments were the first time the Kansas court has considered abortion access since the U.S. Supreme Court overturned federal protections for the procedure last summer and the Kansas voters opted to defeat an anti-abortion constitutional amendment by nearly 20 points.
Justice Dan Biles, who was appointed by former Democratic Gov. Kathleen Sebelius, called last year’s vote the “elephant in the room” after Anthony Powell, the Kansas solicitor general, argued the Dobbs case, which overturned the federal protections, completely changed the reality for legal arguments about abortion.
“Dobbs said we should return the issue to the people to persuade one another and then vote, and we’ve done that in Kansas,” Biles said. “How do we factor that in when you’re asking us to change our view, our interpretation of the Kansas constitution when the people voted so forcefully?”
Powell simultaneously argued that the issue of abortion should be left to the people and their elected officials while telling justices last year’s vote shouldn’t weigh on their decision.
Justices shouldn’t consider public opinion in their votes, he said. But he also invoked the decadeslong movement to overturn Roe v. Wade at the federal level, which culminated in last year’s Dobbs decision, and predicted similar efforts in Kansas.
“It’s my prediction that this court’s decision in Hodes won’t be accepted either. We’re gonna continue to see challenges. The people are gonna want to express their values and they’re going to feel stymied by this court,” he said.
“Aren’t you just saying in a little different way that you’re asking us to take a poll of what people want?” replied Justice Evelyn Wilson, who was appointed by Democratic Gov. Laura Kelly.
Three of the justices who signed onto the 2019 Kansas opinion finding a right to abortion remain on the court. The sole dissenter, Justice Caleb Stegall, also remains on the court. The three newcomers on the court were all appointed by Kelly who supports abortion rights though one new member, Justice K.J. Wall, recused himself from both cases.
The two cases concern abortion restrictions that have never been enforced as litigation has played out for years.
One law would ban dilation and evacuation abortions, a common second term surgical procedure that accounts for roughly 6% of abortions in Kansas. The second is a series of abortion specific clinic regulations that providers have argued are overly restrictive.
The court took both cases under consideration, it’s unclear how quickly they will issue rulings.
Dilation and evacuation ban
On the dilation and evacuation ban, Powell argued that abortion should never have been considered a fundamental right as a component of bodily autonomy in Kansas. Even if it was, he said, the dilation and evacuation ban should be allowed as a compelling interest of the state.
Powell argued that abortion was an issue better left to Kansans and their elected officials but that August’s vote should not be considered in the court’s decision.
He said that the state should be permitted to ban dilation and evacuation abortions, which he called “dismemberment abortions” because it was a heinous act against fetuses.
“The fact that you’re dismembering a human being is a horrible thing,” Powell said. “It’s a horrible thing to dismember a person on death row, it’s a horrible thing to dismember a pet.”
He said he didn’t have sufficient evidence when Biles asked him why he considered dilation and evacuation worse for human dignity than other methods that also result in the end of a pregnancy.
“It seems to me that if the state legalizes something that doesn’t work or works with horrible consequences, it’s really just trying to have a pregnant woman be compelled to give birth against her will,” Biles said. “Can the government do that?”
Alice Wang, an attorney for the Center for Reproductive Rights who represented two Overland Park abortion doctors, said the state in no way proved that other abortion procedures did a better job of accomplishing the state’s goal to promote life.
“Banning the most common, safest procedure and leaving less common less safe procedures violates the right to abortion,” Wang said.
Chief Justice Marla Luckert, appointed in 2002 by moderate Republican Gov. Bill Graves, asked Powell why the state-level right to bodily autonomy should not extend to abortion when facts in the case indicated the ban would force patients toward more dangerous procedures.
“You would take away what the record shows us is a safer form?” she asked.
Clinic regulations
The 2011 clinic regulation law has never been enforced because of court injunctions as litigation proceeded. Abortion providers have long argued that the regulations would risk putting Kansas’ abortion clinics out of business. There are currently five abortion clinics in the state, two in Wichita, two in Overland Park and one in Kansas City, Kansas.
The law required medication abortions to be physically administered by a physician in the same room as a patient, and required physicians to perform tasks usually performed by a medical assistant. The law also established inspection requirements beyond what is expected of other facilities and established a minimum recovery time for patients.
Stegall, the sole conservative on the court, asked whether the court was tasked with determining “the reasonability of the regulation.” He said the decision in this case could extend to precedent on any medical procedure because abortion rights are guaranteed under a broader right to bodily autonomy.
“Whatever the rule is, if we’re going to demand that the state satisfy a particularization of a compelling interest to regulate a surgical procedure the state may not be able to satisfy that for any surgical procedure,” he said.
Caroline Sacerdote, an attorney for the Center for Reproductive Rights, said Stegall was wrong because the court had not ruled other medical procedures to be a fundamental right.
“I am saying that the court has recognized that abortion does bear on our abilities to control our own bodies and to create families,” Sacerdote said. She argued abortion should not be regulated any differently from similar procedures, like miscarriage care.
Powell argued the clinic regulations did not represent an infringement on a Kansas woman’s right to access an abortion.
“There’s no right to perform abortions, there’s a right to obtain an abortion,” Powell said. The regulations, he said, could impose some inconvenience for patients but wouldn’t infringe upon their right.
Several justices asked Powell why the state should go above and beyond existing medical regulations.
“I don’t understand why that rises to make it compelling when there’s already a mechanism in place to ensure public safety,” said Justice Eric Rosen, a Sebelius appointee.
Powell responded that abortion was different. “Because abortion is a procedure that takes a life that enhances the interest of the state because there are risks with abortion,” he said.
———
