Kansas abortion ban differs from Arizona ban at center of Supreme Court decision

The U.S. Supreme Court declined to hear an appeal from Arizona officials defending a law that banned abortions after 20 weeks.

The Arizona law, enacted in 2012, violates a woman’s right to end a pregnancy before a fetus can survive outside the womb, the U.S. Court of Appeals for the 9th Circuit in San Francisco ruled in May. The high court’s decision not to hear that case upholds that ruling.

Kansas has a similar law that bans abortions 22 weeks after a woman’s last menstrual period. But neither Planned Parenthood nor Kansans For Life expect the Kansas law to be overturned anytime soon. The laws differ in a few key ways.

“It’s similar, but it has some important differences,” said Peter Brownlie, executive director of Planned Parenthood of Kansas and Mid-Missouri based in Overland Park. The Arizona law lacks a provision in the Kansas law that makes exceptions to the 22-week ban in cases where the health of the mother is threatened.

Supreme Court precedent allows states to regulate abortion after a fetus reaches viability but dictates that an exception for a woman’s health must be made, said Richard Levy, a professor at the University of Kansas School of Law who specializes in constitutional law.

However, Brownlie said both laws are “intended to put barriers and roadblocks between women and doctors … simply to make it more difficult for women to obtain a constitutional, legal procedure that is often medically necessary.”

Kathy Ostrowski, legislative director for Kansans For Life, said the Kansas law differs from the Arizona law because it focuses specifically on the issue of “fetal pain.”

The idea that a fetus experiences pain after reaching the point of viability is disputed by doctors, but Ostrowski contended that focus distinguishes the Kansas law from its broader Arizona counterpart and ensures constitutionality.

“The state has the right to protect pain-feeling children from the cruelties of abortion,” Ostrowski said.

Rep. Barbara Bollier, R-Mission Hills, a former physician who broke from her party by opposing the law, said that fetal pain does not begin earlier than 25 weeks. “Science does not agree with what the state put into statute,” she said on Monday, the first day of the legislative session.

Rep. Lance Kinzer, R-Olathe, said the law pays attention to “the best science” and also matches what the majority of Kansans want in terms of abortion restrictions.

Levy said the constitutionality of the Kansas law could be challenged if 22 weeks is shown not to be a valid line for a fetus’ viability.

“The reality is that viability is not just dependent on time,” said Bollier, who explained that weight, the functioning of the lungs and other factors needed be weighed to determine viability.

“We’ve always known at some point the law might be challenged,” Kinzer said, but he added that the law would stand up in court.

Ostrowski put it bluntly: “People will challenge anything they want to.”

No Kansas clinic has provided abortions past 22 weeks since Wichita physician George Tiller was shot and killed in 2009. Brownlie and Ostrowski agreed that since no one provides late-term abortions, anyone who tried to mount a challenge in court would likely lack legal standing.

The Trust Women Foundation, founded after Tiller’s death, applauded the Supreme Court decision.

“Laws like Arizona’s drastically reduce access to safe, legal abortion care and endanger women’s health. We only hope that this ruling may signal a shift in policy to stop restricting access to abortion before viability,” said a statement from Julie Burkhart, founder and executive director of Trust Women and South Wind Women’s Center. The center offers abortions up to 14 weeks.

The Supreme Court’s decision not to hear the Arizona case is significant, Levy said, because it would have presented the conservative-leaning Roberts court with an opportunity to rewrite abortion law and perhaps even overturn Roe v. Wade.

“At least at present, the court declined an opportunity to do that,” he said, adding that the court could be waiting for a stronger case to present itself.

Both Brownlie and Ostrowski were reluctant to interpret the decision’s meaning for their respective causes.

“I don’t have the tea leaves to be able to read the significance of the court’s decision not to take the Arizona case,” said Brownlie.

Contributing: Deb Gruver of The Eagle