Kansas Supreme Court: Abortion protected by state Constitution
The Kansas Supreme Court ruled on Friday that women have the right to an abortion under the state’s Constitution.
In a 6-1 decision, the state’s highest court also kept in place a temporary injunction on a law that bans a common second trimester abortion procedure.
“We hold today that section 1 of the Kansas Constitution Bill of Rights protects all Kansans’ natural right of personal autonomy, which includes the right to control one’s own body, to assert bodily integrity, and to exercise self-determination. This right allows a woman to make her own decisions regarding her body, health, family formation, and family life–decisions that can include whether to continue a pregnancy,” the majority wrote in their opinion.
The Kansas Supreme Court said it would leave resolving the merits of the law to a lower court.
The law, Senate Bill 95, was passed in 2015 by the Kansas legislature. It prohibited a common abortion method used in the second trimester of pregnancy, known as the “dilation and evacuation” procedure, except when the mother is at risk of death or “substantial and irreversible physical impairment of a major bodily function.”
Two doctors filed a lawsuit against the bill in June 2015. They argued that the bill limits access to the “safest” procedure for a second-trimester abortion and violates the Kansas Constitution by infringing on “inalienable natural rights, specifically, the right to liberty.” Opponents have called the procedure as “dismemberment abortions.”
The trial court blocked the law from going into effect while the case was being litigated.
In its response, the state acknowledged the US Supreme Court’s 1973 decision in Roe v. Wade that a woman’s right to an abortion is protected under the 14th Amendment, but argued that the same rights do not exist under Kansas’ state Constitution.
The Kansas Supreme Court first heard oral arguments on the law back in 2017.
Democratic Kansas Gov. Laura Kelly, who took office in January, lauded the court’s decision on Friday.
“While federal law has long guaranteed every woman the right to make their own medical decisions in consultation with their healthcare providers, I’m pleased that the Kansas Supreme Court’s decision now conclusively respects and recognizes that right under Kansas law as well,” Kelly said in a statement.
Republican state Sen. Susan Wagle, the president of the Kansas state Senate, said Friday’s decision from “the liberal, activist Supreme Court showed just how out of touch they are with Kansas values.”
“Nowhere in our state Constitution is there a right to the violent act of abortion,” Wagle said in a statement. “Instead, our protected inalienable rights include the right to life, liberty, and the pursuit of happiness.”
Bans on the dilation and evacuation procedure have been signed in 10 states, including Kansas, according to data from the Guttmacher Institute. But of those other nine states, all but two — Mississippi and West Virginia — have seen their laws at least temporarily blocked by the courts.
As abortion rights advocates have become concerned about the fate of Roe v. Wade at the increasingly conservative US Supreme Court, advocates have looked to protections of state constitutions. The success of those moves would depend on the scope of rights and liberties written into individual state constitutions and whether any counter-moves arise within a state to amend provisions.
The high court has reinforced its 1973 ruling over the years, notably in a 1992 case in which the justices said states may not put an “undue burden” on a woman’s right to terminate a pregnancy.
Justice Anthony Kennedy, who was a critical fifth vote in that case and other abortion rights disputes, retired from the court last summer. He was succeeded by Brett Kavanaugh, whose record as a lower court judge was further to the right than that of centrist-conservative Kennedy.
The nine justices have yet to take up an abortion case in this first term of new Justice Kavanaugh.
CNN’s Joan Biskupic and Jessica Ravitz contributed to this report.