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Kan. officials appeal ruling against abortion ban; state lawmaker seeks amendment saying state constitution does not protect abortion rights

February 4, 2016 — Kansas officials on Wednesday asked the state Supreme Court to review a lower court decision that blocked a law (SB 95) banning a certain abortion procedure and ruled that the state constitution protects abortion rights, KCUR 89.3 reports (Margolies, KCUR 89.3, 2/3).

Background

The law, which was drafted by the National Right to Life Committee, would permit exceptions to the ban 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, nor for women who are experiencing mental health issues.

The Center for Reproductive Rights (CRR) 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, increasing 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 percent of abortions that take place during the second trimester.

In June 2015, Shawnee County District Court Judge Larry Hendricks issued a temporary injunction on the law, which had been scheduled to take effect in July 2015. He said while alternative abortion methods would remain legal under the law, those "alternatives do not appear to be medically necessary or reasonable." He noted that the state constitution protects a woman's right to abortion at least to the extent that the U.S. Constitution does.

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 2015 voted 4-3 to refuse.

In October 2015, the Kansas Court of Appeals announced that the full panel of 14 judges would hear the case. In January, the appeals court ruled to uphold the lower court's temporary injunction, as well as Hendrick's statements that the Kansas Constitution's language on personal liberties protects women's right to abortion care. The lawsuit has yet to go to trial, but the appeals court decision suggests how it might rule if it decides to hear the full case (Women's Health Policy Report, 1/25).

Kan. lawmaker to propose amendment saying state constitution does not protect right to abortion

In related news, Kansas Sen. Greg Smith (R) on Tuesday said he intends to propose a constitutional amendment stating that the right to abortion is not protected under the Kansas Constitution, the Wichita Eagle reports.

According to the Eagle, the measure comes in response to the appeals court decision affirming abortion rights under the state constitution.

Details of proposed amendment

Smith's measure would require approval from two-thirds of the state House and Senate before being placed on the ballot for the upcoming election, the Eagle reports. Smith said his proposal has six co-sponsors and will be introduced within the next several days.

If approved, the measure would not affect the legal status of abortion care in Kansas, as the right to abortion is protected under the U.S. Constitution. However, according to the Eagle, the bill could make it more difficult to block or strike down abortion restrictions in state court.

Elise Higgins, a lobbyist for Planned Parenthood of Kansas and Mid-Missouri, criticized the measure. "It is the role of the courts to interpret the law and the constitution. It is not the role of the legislature to do so," she said, adding, "This is out of bounds and a power grab by Governor (Sam) Brownback's allies and a violation of the separation of powers. Legislators should focus on their job … which is passing laws to balance the budget and enhance the lives of the citizens of Kansas" (Lowry, Wichita Eagle, 2/2).