Nearly two years after the Legislature passed a law banning a type of second-trimester abortion, the Kansas Supreme Court will hear arguments in March on whether that law is constitutional.
The long-awaited oral arguments have been scheduled for March 16 in Topeka. And they’ll come before a Supreme Court majority that anti-abortion activists tried and failed to change in the November election.
The law, passed in April 2015 as Senate Bill 95, says doctors cannot use surgical tools to remove a live fetus in pieces. The procedure, known as dilation and evacuation, is used to perform about 95 percent of second-term abortions.
Abortion opponents say the procedure is inhumane and call it “dismemberment” abortion.
The law hasn’t been enforced and remains under a court injunction until the Supreme Court rules in the case filed by physicians Herbert Hodes and Tracy Nauser.
The doctors’ argument basically boils down to two points: The Kansas Constitution, they say, mirrors the federal Constitution in protecting a woman’s right to an abortion; and the alternatives to dilation and evacuation are more intrusive and potentially harmful to the woman, creating an undue burden in exercising her rights.
“SB 95 takes the unprecedented step of conditioning access to medical care upon submission to an additional, medically unnecessary and physically invasive procedure, which in some circumstances is nothing short of experimentation on women. Under any standard, the state does not have the authority to impose such physical and dignitary harms on women,” the plaintiffs argued in a court brief.
The attorney general’s office and the Johnson County district attorney’s office are defending the law.
They contend that the state constitution doesn’t protect abortion rights and that in any case the issue is moot because abortion rights are protected at the federal level.
The state attorneys also argue the law is not an undue burden because there are alternatives to the procedure. That line of reasoning worked in upholding a state ban on a late-term procedure that abortion opponents call “partial-birth abortion.”
A Topeka trial court ruled in favor of the doctors and granted an injunction blocking the law.
The state Court of Appeals essentially deadlocked, with seven judges supporting the state. Seven favored the doctors, although one of them filed a separate concurring opinion.
That tie kept the injunction in place until the Supreme Court rules.
While awaiting that ruling, the anti-abortion group Kansans for Life sought to change the makeup of the Supreme Court.
The group was one of the most active in campaigning to remove four justices in the November election, targeting Chief Justice Lawton Nuss and justices Carol Beier, Dan Biles and Marla Luckert.
That would have allowed Gov. Sam Brownback, an ardent abortion opponent, the chance to appoint a majority of justices before the abortion case would be heard.
The effort failed and all the justices – along with Brownback appointee Caleb Stegall – were retained in office by voters.
Mary Kay Culp, executive director of Kansans for Life, said if the anti-abortion group loses this case, it might ask lawmakers to put a constitutional amendment before voters to make it “crystal clear” that the document doesn’t protect the right to an abortion.
Although her side lost, the vote totals in the Supreme Court retention election were encouraging for future political action, Culp said.
Stegall, who was endorsed by Kansans for Life, won with 70 percent of the vote, while the justices the group opposed polled between 55 and 57 percent, historically low margins of victory in the yes-or-no judicial retention elections.