Do residents of Kansas have a fundamental, constitutional right to abortion?
The Kansas Supreme Court is set to rule on that question, and the decision could affect abortion law far beyond Kansas.
A lower court ruled for the first time in Kansas that the state constitution does protect the right to an abortion apart from that in the U.S. Constitution. That was upheld by a split Kansas Court of Appeals in a lawsuit brought by two doctors over a 2015 state law prohibiting an abortion procedure.
Increasingly, advocates for abortion access are turning to state constitutions to provide a right to an abortion, fearing that the U.S. Supreme Court might chip away at federal abortion freedoms. That in turn concerns abortion opponents, who say that strategy could strip states of their ability to regulate abortion.
This has been “an important strategy in terms of getting the courts to recognize these rights so that regardless of what happens with the federal constitution, the citizens in those states will remain protected,” said Janet Crepps, senior counsel for the Center for Reproductive Rights.
Fifteen states have constitutions that provide a greater protection of abortion than the U.S. Constitution: Alaska, Arizona, California, Connecticut, Florida, Illinois, Indiana, Massachusetts, Minnesota, Montana, New Jersey, New Mexico, Oregon, Vermont and West Virginia, according to NARAL Pro-Choice America.
“Every state that recognizes the right adds momentum to our arguments that every state should find a right to abortion in the state constitution,” Crepps said.
If the Kansas Supreme Court finds a state constitutional right to abortion, “other moderate and conservative states with liberal supreme courts should expect proponents of abortion-on-demand to file similar state-law challenges,” said Margot Cleveland, senior contributor for conservative publication The Federalist and a former law clerk.
“This strategy also seeks to overturn — by judicial fiat — laws that the public overwhelmingly support, such as a requirement that parents receive notification prior to their minor daughter having an abortion and limits on taxpayer funding of abortions,” Cleveland said in an email interview.
The states that already recognize a right to abortion are largely coastal or northern, said Julie Burkhart, founder and CEO of Trust Women. Trust Women operates a clinic in Wichita that offers reproductive health care services including abortion.
That would make Kansas unique should it find a right to abortion in its constitution.
“I think this might be an indication to other states that are more like Kansas in the Midwest and the South that these are rights that are to be shared by all Americans, not just if you live on the East Coast or the West Coast,” Burkhart said.
Kansas has always been at the center of the abortion debates, said Mary Kay Culp, executive director of Kansans for Life. If abortion opponents in other states aren’t paying attention to the case in Kansas, they likely will when the National Right to Life Convention is held in Overland Park in June, she said.
Advocates for abortion access started with blue states, Culp said, and are now moving into red states with blue courts.
If the Kansas Supreme Court does uphold the lower court’s ruling, which Culp said she expects, abortion opponents will seek to amend the constitution to make it clear that legislators have the right to regulate abortion.
For example, in the underlying case in this court battle, a 2015 law would have prohibited dilation and evacuation abortions, which make up about 10 percent of all abortions in Kansas. Opponents of the bill said that it effectively banned the safest abortion procedure used in the second trimester.
Supporters of the bill say that the procedure, which is referred to in the law as “dismemberment abortion,” is so heinous that the state must have the right to regulate it. They say the law would prohibit dilation and evacuation abortions on a live fetus.
Kansas Republican leaders, including Gov. Jeff Colyer, have supported the idea of a constitutional amendment depending on how the court rules.
“There’s a Kansas court that has argued that the framers, framers of our constitution, imagined abortion as a separate constitutional right,” Colyer said at a Kansans for Life prayer breakfast in February. “This is just violence against the most basic facts.”
It would take two-thirds of the Kansas House and two-thirds of the Senate to put such an amendment before the public. A majority of the public vote would then be needed for the amendment to pass.
If the Kansas Supreme Court were to find a right to abortion in the state constitution, that would “be a warning to all the rest of the states about this issue,” Culp said.