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Kansas Appeals Court Split In Latest Abortion Decision

wstrachan1, flickr Creative Commons


An attempt to ban a certain 2nd-trimester abortion procedure has been stopped by a Kansas Appeals Court.

The ruling came on the anniversary of the U.S. Supreme Court Decision of Roe V. Wade, allowing abortion in the country.

The ban, which is referred to as the dismemberment ban, was introduced into the legislature and passed last year.

The restriction was challenged by doctors who provide abortion services, and a lower court put the ban on hold. The issues against the ban were about the constitutional rights under the state constitution.

The appellate judges tied 7-7 in their finding, which now sends the case back to the lower court. Kansas Gov. Sam Brownback stated that "The court’s failure to protect the basic human rights and dignity of the unborn is counter to Kansans' sense of justice."

Trust Women, an abortion rights activist group affiliated with the late Dr. George Tiller, said that women deserve the right to access necessary reproductive health care without undue governmental interference.

UPDATE: Kansas Attorney General Derek Schmidt said the state would request immediate review by the Kansas Supreme Court. 

Stephen Koranda at the Statehouse:

The Kansas Court of Appeals split 7-7 on a ruling over a so-called “dismemberment abortion” ban. The division means a lower court order will continue to block the law from taking effect.

The judges were divided over whether the right to an abortion is protected under the Kansas Constitution. Abortion opponents in Kansas say there is no such right. Lieutenant Governor Jeff Colyer echoed that statement at an anti-abortion rally at the Statehouse.

“The Kansas Court of Appeals rewrote the Constitution today, and they rewrote the Constitution against people like you and me and all Kansans. We’re going to have to speak back loudly,” Colyer says.

Laura McQuade, with Planned Parenthood of Kansas and Mid-Missouri, says recognizing a right to abortion in the Kansas Constitution would make it easier to overturn abortion restrictions.

"This is an enormous victory for women’s ability to make private medical decisions with their medical providers and to access the safest and highest-quality care that the medical community can offer to them," McQuade says. “We were thrilled to see the decision and we were particularly thrilled to see the language cited in the decision. It’s a very strong ruling for women and for access to safe and legal abortions here in Kansas.”

Kathy Ostrowski, with Kansans for Life, says this isn’t the way to create an abortion right in the Kansas Constitution.

“This is a horrific misreading of state law. If the citizens of Kansas wanted to insert a right to abortion, they should do it by a ballot initiative and not judicial fiat,” Ostrowski says.

Recognizing a right to abortion in the state Constitution could make it easier to overturn abortion restrictions. Ostrowski believes the lawsuit will eventually go to the federal courts and the law will be upheld.

The lawsuit will likely now go to the Kansas Supreme Court.

Associated Press:

The Kansas Court of Appeals refused Friday to allow the state's first-in-the-nation ban on a common second-trimester abortion method to take effect, saying in a split but groundbreaking decision that the conservative state's constitution protects abortion rights independent of the U.S. Constitution.

If the 7-7 ruling released on the anniversary of the U.S. Supreme Court's Roe v. Wade decision is allowed to stand, it could upend several other abortion restrictions in Kansas because a key issue in the case is whether a woman's right to end her pregnancy is specifically protected by the Kansas Constitution. Tie votes from the court uphold the lower-court ruling being appealed.

Seven appellate judges agreed with a county judge who said the Kansas Constitution's Bill of Rights has general statements about personal liberties that create independent protections for abortion rights. Such a finding would allow the state's courts to protect those rights more than the federal courts have done, which abortion opponents fear could allow state judges to invalidate restrictions in Kansas that federal courts might allow.

"The rights of Kansas women in 2016 are not limited to those specifically intended by the men who drafted our state's constitution in 1859," the appeals court wrote.

The decision is expected to be appealed to the Kansas Supreme Court.

The ruling stems from a lawsuit filed by two abortion providers who said the 2015 law is an unconstitutional burden on women seeking to end their pregnancies. The law prohibits doctors from using forceps or similar instruments on a live fetus to remove it from the womb in pieces.

Such instruments are commonly used in dilation and evacuation procedures, which the Center for Reproductive Rights has said is the safest and most common abortion procedure in the U.S. in the second trimester.

A similar Oklahoma law also was blocked by a state-court judge, while lawmakers in Nebraska have considered similar measures.

The Kansas law was put on hold by a lower court during the legal fight, and the appeals court upheld that decision. The lawsuit cites only rights granted in the Kansas Constitution, meaning the case will be handled in the state court system.

The ruling came as abortion opponents converged on the Statehouse for a rally marking the 43rd anniversary of the U.S. Supreme Court's Roe v. Wade decision legalizing abortion nationwide.

Kansas Senate Majority Leader Terry Bruce said he can't imagine a scenario where the framers of the Kansas Constitution meant to legalize abortion. David Gittrich, a leader with Kansans for Life, added that his group will work to oust Kansas Court of Appeals judges in elections later this year.

"How much worse can you get?" Gittrich said. "If any type of abortion should be banned, it's that one."

The state law at issue in the case seeks to prevent doctors from using their medical judgment to provide the best care for their patients, said Julie Burkhart, founder and CEO of Trust Women and South Wind Women's Center, which provides abortion services in Wichita.

"Women deserve the right to access necessary reproductive health care without undue governmental interference," Burkhart said, praising the court's ruling.

At issue in the lawsuit is whether broad legal language about individual liberty protects abortion rights. The Kansas Constitution states that residents have "natural rights," and that "free governments" were created for their residents' "equal protection and benefit."

A Shawnee County judge cited the same constitutional language when blocking the law last year, ruling that the Kansas Constitution protects abortion rights at least as much as the U.S. Constitution. The judge also ruled that the ban imposes an unconstitutional burden on women seeking abortions.

Kansas law calls the banned method "dismemberment abortion," echoing a description coined by anti-abortion groups. But none of the attorneys or judges used such a phrase during arguments before the court last year.

The lawsuit was filed by father-daughter Drs. Herbert Hodes and Traci Nauser, who perform abortions at their health center in the Kansas City suburb of Overland Park.

The case has involved all of the appeals court's judges, rather than the normal three-judge panel, which judicial branch officials believe hasn't happened since 1989.

The decision upholding the lower-court ruling was written by Judge Steve Leben, an appointee of former Democratic Gov. Kathleen Sibelius.


In a sweeping decision, the Kansas Court of Appeals has ruled that the Kansas Constitution’s Bill of Rights provides a right to abortion and blocked a Kansas law banning the second-trimester abortion method known as “dilation and evacuation.”

The ruling represents a major victory for abortion activists, who contended the ban increased the complexity and risk of second-trimester abortions. And it marks the first time a Kansas appellate court has found a right to abortion in the Kansas Constitution.

Signifying the importance of the case, all 14 judges on the court weighed in. The court split down the middle, with seven judges voting to uphold a lower court ruling temporarily blocking implementation of the Kansas ban and seven voting to reverse the lower court. When an appeals court is equally divided, the trial court’s ruling is upheld.

Kansas Attorney General Derek Schmidt said the state would request immediate review by the Kansas Supreme Court.

Writing for the faction voting to strike down the ban, Judge Steve A. Leben said that “(t)he rights of Kansas women in 2016 are not limited to those specifically intended by the men who drafted our state’s constitution in 1859.”

Leben also noted that Kansas has banned what’s known as the intact D&E abortion procedure since 1998. “By combining that ban with a new one on the D&E abortion procedure,” he wrote, “Kansas has simply attempted to do in two statutes what the United States Supreme Court held Nebraska could not do in one—ban both D&E and intact D&E abortions.”

The case was brought last year by two Overland Park doctors, Herbert Hodes, and his daughter, Dr. Traci Nauser, who operate one of three abortion clinics in Kansas. The pair challenged the D&E ban, which the Legislature enacted last year.

Kansas Gov. Sam Brownback issued a statement saying he was "deeply disappointed in the court's decision to allow dismemberment abortions of a living child to continue in the State of Kansas. The court’s failure to protect the basic human rights and dignity of the unborn is counter to Kansans' sense of justice."

"Seven judges have chosen to create law based upon their own preferences rather than apply the law justly and fairly," the statement continued. "I support the Attorney General in his call on the Kansas Supreme Court for a swift decision protecting the unborn."

Nancy Northup, president and CEO of the Center for Reproductive Rights, which represented Hodes and Nauser, said in a statement that the ruling was "a landmark victory for Kansas women, whose rights and health have been under siege for far too long."

"The state Court of Appeals has rightly affirmed that Kansas women have the right to safely and legally end a pregnancy under their state constitution, free from political interference," she said.

Planned Parenthood of Kansas and Mid-Missouri, which was not a party to the case but has been involved in other battles challenging Kansas abortion restrictions, issued a statement congratulating Hodes and Nauser.

"Their brave fight blocked enforcement of a medically dangerous ban on the safest, most commonly used form of second trimester abortion," the statement said, calling the Kansas ban "an irresponsible attempt to restrict women's access to safe, legal surgical abortions."

D&E accounts for about 9 percent of all abortions in Kansas, although nearly all second-trimester abortions are performed using the procedure. Anti-abortion activists call it “dismemberment abortion” but it’s known medically as dilation and evacuation, or D&E.

The Kansas ban allowed D&E in only three situations: where it was necessary to preserve the life of the mother; where the pregnancy’s continuation would cause the mother “substantial and irreversible” physical harm; or where the fetus was already dead. Doctors found to violate the law were subject to criminal prosecution.

The law was based on model legislation from the National Right to Life Committee and was the first of its kind in the nation. Oklahoma passed an identical ban after Kansas, and other states, including Missouri, have considered similar bills.

The Oklahoma ban was also challenged and blocked by a lower court. The case is pending on appeal. The challenge to the Kansas law was unusual in that it was based not on the U.S. Constitution and the U.S. Supreme Court’s landmark abortion decision, Roe v. Wade, but on the first two sections of the Kansas Constitution’s Bill of Rights.

Section 1 of the Kansas Bill of Rights provides, “All men are possessed of equal inalienable rights, among which are life, liberty, and the pursuit of happiness.” Section 2 provides, “All political power is inherent in the people, and all free governments are founded on their authority, and are instituted for their equal protection and benefit …”

In rooting the right to abortion in the Kansas Constitution, Leben said that the right to liberty “fits squarely within both the federal abortion-rights cases and the broader substantive-due process case law within which the federal constitutional right to abortion has taken form.”

In July, Shawnee County District Judge Larry D. Hendricks reached a similar conclusion when he issued a temporary injunction blocking the law from taking effect. Hendricks ruled that the Kansas Bill of Rights “independently protects the fundamental right to abortion.”

In his decision, Hendricks also determined that alternatives to D&E weren’t reasonable, “would force unwanted medical treatment on women, and in some instances would operate as a requirement that physicians experiment on women with known and unknown safety risks as a condition (of) accessing the fundamental right of abortion.”

The state appealed, arguing that the Kansas Constitution contains no reference to abortion and the Kansas Supreme Court has never recognized a state-law right to abortion. It also contended the law only banned one abortion method and other safe alternatives were available.

The full court of 14 judges heard oral arguments in December. Appeals are typically heard by a three-judge panel of the court.

Leben was joined in his opinion by five other judges. A sixth judge, G. Gordon Atcheson, wrote a separate concurring opinion.

Judge Tom Malone wrote a dissenting opinion joined by six other judges. In his dissent, Malone said that he would not find an independent state-law right to abortion in the Kansas Constitution.

“Based on this finding, and because the plaintiffs' claims are brought solely under the Kansas Constitution, it follows that the plaintiffs have failed to establish a substantial likelihood of prevailing on the merits of their claims,” he wrote.

Dan Margolies, editor of the Heartland Health Monitor team, is based at KCUR. You can reach him on Twitter @DanMargolies.

Kansas Court of Appeals Decision:

A Response From The Governor's Office: 

Trust Women Response:

Planned Parenthood Response:

Stephen Koranda is the managing editor of the Kansas News Service, based at KCUR. He has nearly 20 years of experience in public media as a reporter and editor.
The Associated Press is one of the largest and most trusted sources of independent newsgathering, supplying a steady stream of news to its members, international subscribers and commercial customers. AP is neither privately owned nor government-funded; instead, it's a not-for-profit news cooperative owned by its American newspaper and broadcast members.
Dan Margolies is editor in charge of health news at KCUR, the public radio station in Kansas City. Dan joined KCUR in April 2014. In a long and varied journalism career, he has worked as a reporter for the Kansas City Business Journal, The Kansas City Star and Reuters. In a previous life, he was a lawyer. He has also worked as a media insurance underwriter and project development director for a video production firm.