(Topeka) Kansas’ highest court on Friday struck down state laws that more strictly regulate doctors who perform abortions than other health care professionals and banned a common second-trimester procedure, reaffirming its position that the state constitution protects access to abortion.
“We maintain our conclusion that Article 1 of the Kansas Constitution’s Bill of Rights protects a fundamental right of personal autonomy, which includes the right of a pregnant person to terminate her pregnancy,” Supreme Court Justice Eric Rosen wrote for the majority in striking down a ban on a certain type of dilation and evacuation, also known as a D&E, which involves dilating the cervix and removing the fetus and placental tissue from the uterus.
In striking down the abortion clinic regulation law, the Kansas Supreme Court found that the state had not met “its burden of proof to demonstrate that the challenged laws further its interests in protecting maternal health and regulating the medical profession with respect to maternal health.”
The Kansas Supreme Court’s rulings in two separate cases indicate that the Republican-controlled court faces stricter limits on abortion regulation than Republican lawmakers thought, and suggest that other restrictions could be abandoned.
Lawsuits in lower courts are already challenging restrictions on medication abortions, a ban on doctors using video to meet with patients, rules on what doctors must tell women before an abortion and a requirement that patients wait 24 hours after receiving information about the procedure before terminating their pregnancies.
Only one dissenting judge
Justice KJ Wall did not participate in either decision Friday, while Justice Caleb Stegall was the lone dissenter.
In his dissenting opinion in the clinic settlement case, Mr. Stegall said the majority’s actions would undermine the court’s legitimacy “for years to come.”
He noted that the declaration that the state constitution protects the right to bodily autonomy could affect a “broad range” of health and safety regulations beyond abortion.
Mr. Stegall, who was appointed by conservative Republican Gov. Sam Brownback, is widely considered the most conservative member of the Kansas Supreme Court.
Kansas’s highest court ruled in a 2019 decision that access to abortion is a matter of bodily autonomy and a fundamental right under the state constitution. In 2022, it also decisively rejected a proposed amendment that would have explicitly declared abortion not a fundamental right and allowed state lawmakers to significantly restrict or ban it.
State attorneys had urged the justices to reverse the 2019 decision and uphold the two laws, which had not yet been enforced because of legal battles over them. The state solicitor general, appointed by Republican Attorney General Kris Kobach, had argued that the 2022 vote was irrelevant in determining whether the laws could stand.
The court disagreed, handing a major legal victory to abortion rights advocates.
Kansas has become an outlier among states with Republican-controlled legislatures since the U.S. Supreme Court in June 2022 allowed states to ban abortion altogether.