July 17, 2011

Kansas groups push stricter abortion limits

Anti-abortion groups are planning to seize the momentum of spring victories in the Kansas Statehouse and push for more restrictive measures, even ahead of the 2012 legislative session.

Anti-abortion groups are planning to seize the momentum of spring victories in the Kansas Statehouse and push for more restrictive measures, even ahead of the 2012 legislative session.

A petition has begun circulating for Gov. Sam Brownback to convene a special session this fall to consider a so-called "heartbeat bill" that would ban abortions when a fetal heartbeat is detected.

Another group plans to introduce a bill calling for a state constitutional amendment guaranteeing the rights of personhood to every human being from the beginning of biological development, including fertilization.

Both measures would defy Roe v. Wade, the 1973 U.S. Supreme Court decision that affirmed a woman's right to have an abortion until the fetus would be viable outside the womb, usually at 22 to 24 weeks.

The measures are scorned by abortion-rights groups and considered controversial even among some abortion foes who say such measures overreach and would lead to setbacks in the courts.

But Mark Gietzen, board chairman of the Kansas Coalition for Life, who is pushing for the "heartbeat bill," cited the numerous anti-abortion measures that Brownback recently signed into law and said, "What else can we do? We've got just about everything else covered."

Kansas lawmakers passed bills that set new licensing requirements for medical facilities that provide abortions; banned abortions after 21 weeks based on the disputed notion that fetuses can feel pain then; required minors seeking an abortion to obtain the notarized written consent of both parents, or a legal guardian; restricted private insurance coverage for abortions; and redirected federal family planning funds from Planned Parenthood to other health care agencies.

The new licensing requirements and the stripping of federal funds from Planned Parenthood already are in the courts.

Twin efforts to get more stringent laws such as a "heartbeat bill" and a personhood measure aren't a surprise to opponents.

"It is the same as all of the other anti-reproductive rights legislation," said Julie Burkhart, founder and director of Trust Women, which hopes to open a clinic offering first-trimester abortions and other women's health services in Wichita in about a year.

"It's about denying access to pregnant women who are in need of reproductive health care. It's a further step toward the re-criminalization of abortion services for women."

Will Kansas be first?

Attempts to get both bills passed are likely to keep Kansas at the forefront of the national debate over abortion.

Although other states have considered each measure, none has passed one into law yet and Kansas could be the first state to do so.

A "heartbeat bill" in Ohio made it through the House but must be voted on in the Senate. Gietzen, who said a heartbeat law would stop about 85 percent of abortions in the state, thinks Kansas can beat Ohio with a special session, which he hopes to have Brownback convene in October.

Brownback's office did not respond to questions about whether he would call for a special session.

Personhood petitions are active in all 50 states, but no states have approved an amendment yet.

Personhood amendments were soundly defeated in Colorado twice, in 2008 and 2010. One is up for vote in Mississippi in November.

Bruce Garren, committee chairman of Personhood Kansas, thinks Colorado wasn't as receptive to personhood as Kansas, where a constitutional amendment would require a two-thirds vote in the House and Senate. If passed, it would then go before voters in the 2012 general election.

"We just think the people of Kansas ought to have the right to vote on this," Garren said.

Legal cases anticipated

Passage of either measure would face potentially costly court challenges.

"These types of laws are just blatantly unconstitutional," said Gretchen Borchelt, senior counsel for the National Women's Law Center in Washington, D.C. "They're just trying to provoke court challenges to Roe v. Wade."

The goal is to overturn that decision, she said, but it's an expensive undertaking for a state facing a severe budget crisis.

"There's not the public support, there's not the legal support. It's just an extreme overreach to push a challenge," she said.

A spokesperson for the Center for Reproductive Rights in New York City, which filed a lawsuit against the state's new clinic licensing regulations on behalf of an Overland Park clinic, said the center "will monitor any measures that threaten to cut off women's access to reproductive health services."

The center doesn't comment on its litigation plans, she said.

Planned Parenthood of Kansas and Mid-Missouri, which has sued the state to retain its federal funding, didn't respond to questions about how it would respond to the proposals.

Conflict over strategy

Anti-abortion groups in Kansas disagree about pushing more restrictive measures.

Troy Newman, president of Wichita-based Operation Rescue, which came up with the personhood idea, doesn't think personhood will pass in Kansas. He cited its double defeat in Colorado, where opponents effectively argued it would outlaw women's contraceptives such as IUDs, which prevent implantation of a fertilized egg.

A more reasonable approach is to continue to focus on regulating clinics that perform abortions, he said.

The anti-abortion organization Kansans for Life, which has offices in Wichita, Topeka and Overland Park, recommends taking more incremental action, such as education and working to elect lawmakers who oppose abortion.

"We want change to be lasting change, not try to throw the Hail Mary passes," said Mary Kay Culp, executive director.

Her organization plans to push for introduction of a bill in the next legislative session that protects the rights of health care workers who want to refuse to participate in situations they find morally objectionable. Culp said President Obama's health care law weakens their rights to act on their consciences.

A more gradual approach may not be exciting, Culp said.

"But it's also not as apt to be turned on its head," she said.

More restrictive measures require much thought, Culp said.

"Just because you have a governor that might sign it should it pass both bodies, there's lots to be considered,'' she said.

"Is it right for the long run? It's going to be sued, so where are you going? You end up in the U.S. Supreme Court, where you're still short a vote."

Gietzen said he would welcome a high-court test of heartbeat legislation because he thinks the justice who is perceived as the swing vote on abortion, Anthony Kennedy, has shown signs of returning to an anti-abortion stance he had when he was nominated to the court.

Issues are clouded

But problems over defining personhood and determining when, exactly, a heartbeat can be detected in a fetus are bound to complicate the issues.

Attempts to define personhood raise questions such as whether frozen embryos are persons, said Rep. Barbara Bollier, R-Mission Hills. She is a former physician who taught bioethics courses that wrestled with definitions of personhood.

"You run into all these gray areas. It's incredibly difficult," she said.

In spite of the complexities, Bollier — who voted against the state's new "fetal pain" bill because she believed that accepted medical literature doesn't support the claim that fetuses feel pain at 22 weeks — said both measures are likely to pass in Topeka.

"I think that anything that has to do in some way with limiting people's choices for abortion has a significant chance of going through," she said.

Rep. Randy Garber, R-Sabetha, is sponsoring the personhood legislation, but he isn't sure how that vote will turn out.

"Some strong pro-life people think it's the wrong way to go. I think it'll be a very close vote," he said.

But Garber, a pastor, is determined to get it passed. He said that he tells critics of the approach, "This is why God put me in the Legislature. I really prayed about it."

And he isn't concerned about legal ramifications.

"If we believe God is in charge," Garber said, "we should try to legislate the way God would want us to."

Critics of heartbeat legislation say a fetal heartbeat can be detected within three to six weeks of conception, before women even know they're pregnant.

Factors such as the woman's body fat, the fetus's position in the womb and the type of detection method used vary, they say.

A woman could have a window of two weeks or less to find out she was pregnant, make a critical decision about whether to have an abortion, get any required approvals and schedule a procedure.

Women who have irregular menstrual cycles may find out too late to do anything but continue the pregnancy.

Such bills don't factor in the health of the mother, said Burkhart, of Trust Women.

"Let's say you can detect a heartbeat in three to six weeks," she said. "At that point, you don't have viability of a fetus. Who is the giver of life? It is the woman who is carrying the baby to term.

"You can't really separate out the life of the woman and the well-being and status of the fetus."

Gietzen admits issues regarding heartbeat detection are problematic. His bill hasn't been written yet, he said, but it would be modeled on Ohio's bill, which requires that a person who intends to perform an abortion must determine whether the fetus has a heartbeat, then inform the woman regarding the probability of bringing the unborn child to term.

The Ohio bill doesn't provide exceptions for rape and incest. An abortion would be allowed only in a medical emergency.

Petition drives begun

Gietzen has launched a petition drive to gather 15,000 signatures from around the state asking Brownback to call a special session. The petition has few signatures so far, but Gietzen announced it only two weeks ago and hasn't geared up a major campaign yet.

Gietzen said he would ask lawmakers to convene the session at no cost to the state. He thinks they can deal with the bill in two days.

He doesn't want to wait for the regular session in January because legislation usually gets pushed to the end of the session, he said.

"If we miss October, you're looking at June, or a year from now, before a bill would go into effect," Gietzen said.

John Willke, president of the Life Issues Institute in Cincinnati, has written letters to Brownback and legislators supporting the heartbeat effort, Gietzen said.

But Gietzen also has received negative feedback from other abortion foes who want him to support personhood instead. Gietzen said he would support personhood, but the country isn't ready for it.

"We can pass heartbeat legislation now. We cannot get personhood legislation passed," Gietzen said.

But Garren, whose personhood organization has gathered 4,000 signatures on a petition aimed at swaying lawmakers, doesn't agree.

Personhood isn't an overreach and doesn't risk hurting the movement, he said.

"When somebody says this could make it worse, my question would be, 'So how many more babies do you think might die because of this?' " Garren said.

Abortion has gone on too long in the 38 years since Roe v. Wade, he said.

He pointed to the 4,000 signatures on the personhood petition.

"They're thinking the incremental strategy we're using may not ever get us there," Garren said.

Related content