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Full Kan. Court of Appeals Will Review Challenge to Abortion Restriction

Full Kan. Court of Appeals Will Review Challenge to Abortion Restriction

October 22, 2015 — All 14 judges of the Kansas Court of Appeals will hear a challenge on a state law (SB 95) that would prohibit physicians from performing a certain type of abortion procedure, the AP/Greenwich Time reports (Hanna, AP/Greenwich Time, 10/21).

Background

The law, which was drafted by the National Right to Life Committee, will permit exceptions only if continuing the pregnancy would result in a woman's death or the irreversible physical impairment of a major bodily function. The law does not include exceptions for cases of incest or rape. It also does not include an exception if a woman is experiencing mental health issues.

The Center for Reproductive Rights filed the lawsuit in Shawnee County District Court on behalf of Herbert Hodes and Traci Nauser, ob-gyns at the Center for Women's Health in Overland Park, Kan. The providers contend that, under the law, doctors would be forced to change their manner of providing abortion care, resulting in practices that increase the complexity of abortions and the health risks to women. Further, they said Supreme Court precedent prohibits states from banning the most commonly used procedure for abortion. According to CRR, the procedure that would be banned under the law is used in 95% of abortions that take place during the second trimester.

In June, Shawnee County District Court Judge Larry Hendricks issued a temporary injunction on the law, which was scheduled to take effect in July. He said while alternative abortion methods would remain legal under the law, those "alternatives do not appear to be medically necessary or reasonable." In addition, he noted that the state constitution protects women's right to abortion at least to the extent that the U.S. Constitution does (Women's Health Policy Report, 6/26).

Kansas Attorney General Derek Schmidt (R) appealed Hendricks' decision, and both parties in the lawsuit asked the Kansas Supreme Court to take over the case. The state Supreme Court in September voted 4-3 to refuse, and it did not disclose the reasoning behind the decision.

Latest Development

Earlier this month, the state Court of Appeals put forth a notice that its full court would review Hendricks' decision before turning over the case to the state Supreme Court. The court did not share an explanation for its decision.

According to the AP/Times, a three-judge panel of the court typically hears a lawsuit, and the losing party is then permitted to appeal to the full Court of Appeals before petitioning the state Supreme Court for review.

The Court of Appeals will hear oral arguments Dec. 9. Lisa Taylor, a court spokesperson, said officials believe that the last time the full court heard a case in lieu of the standard three-judge panel was in August 1989.

If the court upholds Hendricks' decision to block the law, it would be the first time a Kansas judge ruled that the state Constitution protects abortion rights at least as much as the U.S. Constitution, and could call into question other abortion restrictions, the AP/Times reports.

Comments

According to the AP/Times, opponents and supporters of the law said the court of appeals' decision to hear the case with the full bench signifies the importance of the case and shows that the judges want the state Supreme Court to consider the lawsuit quickly.

Janet Crepps, a senior attorney for CRR, said, "What it signifies to me is that the court recognizes that this is an important question of first impression." She added, "It's an important constitutional question but also a question of major public interest."

Similarly, Schmidt said he appreciates the Court of Appeals' "swift and full consideration" of a lawsuit that has "significant constitutional gravity" (AP/Greenwich Time, 10/21).