10 Years After Dr. Tiller's Murder, Kansas' Abortion Rules Could Take Another Turn

May 31, 2019
Originally published on June 1, 2019 6:38 am

Exactly 10 years ago, on May 31, 2009, an anti-abortion zealot gunned down ob/gyn and reproductive rights advocate George Tiller as he was distributing literature in the foyer of his Wichita church.

His murder marked the culmination of 18 years of militant anti-abortion protests that began with massive demonstrations in Wichita in June 1991. Protestors blockaded abortion clinics for weeks during the “Summer of Mercy,” police made more than 2,600 arrests and a judge ordered U.S. marshals to keep the gates of Tiller’s clinic open.

“It had been ratcheting up and ratcheting up over that time,” recalled Teresa Woody, a Kansas City lawyer whose clients include abortion providers.

“That horrible event,” Woody added, referring to Tiller’s assassination, “there had definitely been a lot of violent talk leading up to it.”

Because Tiller was one of the few doctors in the nation who performed third-trimester abortions, he drew patients from all over the country and even from abroad. That put him in the crosshairs of abortion opponents, who called him “Killer Tiller” and bombed his Wichita clinic. In 1993, an anti-abortion activist shot him in both arms, although Tiller went back to work the next day.

Because Kansas is now one of the most restrictive states in the country when it comes to abortion access, it’s often forgotten that it used to be one of the most liberal.

“We certainly saw an uptick in anti-choice legislation after the Summer of Mercy,” said Julie Burkhart, a protégé of Tiller and founder and CEO of Trust Women in Wichita, an abortion clinic and reproductive rights organization. “Before, Kansas virtually had no restrictions on the books. You started to see a more punitive state government afterward.”

In fact, in 1973 — the year the U.S. Supreme Court decided Roe v. Wade — more abortions were performed in Kansas than in Missouri, Arkansas Iowa, Nebraska and Oklahoma combined.

“Kansas, historically, had been liberal on personal rights,” Woody said. “Didn’t want the government interfering in people’s personal business. I think Kansas has been that way for a long time and this (abortion) became an exception.”

But the pendulum may be swinging back. A landmark decision by the Kansas Supreme Court last month could spell the undoing of many of Kansas’ abortion requirements.

Current restrictions

The tide began to turn with the Summer of Mercy, which set the stage for the state’s political realignment.

Kansas has since banned abortions after 20 weeks of pregnancy, unless the life of the mother is endangered or her health is severely compromised. Public funding can only be used for abortion in cases of rape, incest, or where the woman’s life is at risk. 

The enactment of a host of further restrictions on doctors and clinics have left all but Johnson and Sedgwick counties without an abortion provider:

  • Abortion providers must have admitting privileges at a nearby hospital and their facilities must meet some of the same physical standards as ambulatory surgery centers.
  • Doctors are prohibited from administering drug-induced abortions remotely through telemedicine.

Abortion providers also must make specific disclosures to their patients, including:

  • Informing patients that an abortion will “terminate the life of a whole, separate and unique human being” and that fetuses feel pain.
  • Informing patients of their credentials, any disciplinary actions meted out against them and whether they have malpractice insurance. Those disclosures must be provided at least 24 hours before an abortion and printed on white paper in black 12-point, Times New Roman font.

Gov. Laura Kelly, a Democrat elected in November, vetoed another disclosure requirement Kansas lawmakers passed this year. That would have forced abortion providers to tell women that a drug-induced abortion can be reversed.  

Women, too, face requirements to get an abortion in Kansas:

  • State-directed counseling
  • A 24-hour waiting period
  • Fetal ultrasound
  • Dual parental consent for minors

The linchpin?

Notably, there’s one other restriction on Kansas' books that may, in time, prove to be the undoing of the state’s stringent abortion regimen.

In 2015, Kansas became the first state to pass a law prohibiting the common second-trimester abortion procedure known as “dilation and evacuation” — or what abortion opponents describe as “dismemberment abortions.” Then-Gov. Sam Brownback, a Republican and vehement abortion opponent, signed the bill, which was viewed as a triumph by abortion rights opponents.

The law was immediately challenged by two Overland Park physicians, Herbert Hodes and his daughter, Traci Nauser, who operate one of four abortion clinics in the state. A lower court blocked the law from taking effect and in January 2016, the Kansas Court of Appeals upheld that decision. The state then took the case up to the Kansas Supreme Court.

Kansas argued that federal case law allowed it “to voice its profound respect for life and human dignity” by regulating or even limiting some abortion methods “that society finds inhumane and objectionable when safe alternatives exist.”

Hodes and Nauser countered that the law intruded on the doctor-patient relationship and that alternatives to the dilation and evacuation (D&E) procedure were invasive and medically unnecessary.

That set the stage for the Kansas Supreme Court to hand down one of the most momentous decisions in its 150-plus-year history.

On April 26, the high court struck down the D&E restriction, ruling that a woman’s right to abortion is rooted in the Kansas Constitution’s Bill of Rights.

For that reason, the court said, abortion restrictions must withstand “strict scrutiny.” The court sent the D&E law back to the lower court to determine if it meets that test.

“At the heart of [Section 1 of the Kansas Bill of Rights] is the principle that individuals should be free to make choices about how to conduct their own lives, or, in other words, to exercise personal autonomy,” the court pronounced in its sweeping decision. “Few decisions impact our lives more than those about issues that affect one’s physical health, family formation, and family life.”

The decision was hugely consequential for two reasons. First, it meant that even if Roe v. Wade is overturned by the U.S. Supreme Court, the right to abortion in Kansas will remain intact. And second, because laws limiting abortion access will now be subject to strict scrutiny — meaning the state must show they’re “narrowly tailored to promote” a “compelling interest” — the state’s abortion laws are almost certain to face new court challenges.

In fact, a pending court challenge to the state’s ban on telemedicine abortions was bolstered by the Supreme Court’s ruling; the attorney general’s office last week had no choice but to withdraw its argument that women have no right to an abortion under the state constitution.  

“The court now has the opportunity to rule taking the Supreme Court opinion into consideration,” Burkhart, whose Trust Women clinic challenged the law. “So I think what we’re looking at is seeing how this case unfolds and developing our strategy in terms of the other punitive laws that are on the books.”

But Burkhart said she’s not resting easy.

Abortion rights opponents have vowed to push to amend the state constitution to undo the Kansas Supreme Court holding.

Dan Margolies is a senior reporter and editor at KCUR. You can reach him on Twitter @DanMargolies.

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