If Kansans vote for abortion amendment, these restrictions could go into effect
Kansas’ August vote on abortion rights will determine the future for two Brownback era abortion restrictions that were deemed unenforceable by state judges.
In 2015, Kansas lawmakers passed a ban on dilation and evacuation abortions, a common second trimester procedure. Kansas was the first state in the nation to pass such a ban but it was never enforced as it was immediately blocked by a court order, setting off several years of litigation.
The legal battle over the the law eventually led to the landmark 2019 Kansas Supreme Court ruling that found a right to an abortion in the state constitution.
The 2019 ruling was used in Shawnee County court last year as justification to also strike down a 2011 law establishing specific licensure and safety requirements for abortion providers.
Neither law has ever been enforced; both remain tied up in the appeals process. Passage of the Aug. 2 amendment, designed to overturn the 2019 ruling, could shape their fate as abortion opponents in the state say ensuring the policies finally take effect will be a top priority.
“I think there is some discussion about, is that just a maneuver, does the attorney general need to get involved, do we need to actually go through the process again to have hearings and pass those laws again?” State Rep. Susan Humphries, a Wichita Republican and leading anti-abortion voice in the Legislature, said during an amendment campaign event Tuesday.
“I think it’s still a little bit up in the air but I will say that is the first thing that we would want to do.”
Enforcement of the two sets of abortion restrictions are likely the most immediate impacts if the constitutional amendment removing a state-level right to abortion passes. Civil cases on both laws remain in the appeals process and are awaiting a final ruling from the Kansas Supreme Court.
If the amendment passes in August, the court could quickly rule one or both policies are enforceable under Kansas law— making it a crime to perform a dilation and evacuation abortion if the mothers life is not at risk. The GOP-dominated state Legislature could also pass similar provisions into law a second time.
Though anti-abortion activists have said the 2019 ruling left all other Kansas abortion restrictions “presumed unconstitutional,” the 2011 and 2015 laws are the only ones that have fallen as a result of the ruling. All other regulations remain in effect until a lawsuit causes a court to strike them down or issue an injunction.
What are the restrictions?
The 2011 law placed a series of new restrictions and regulations on abortion providers including surprise inspections twice a year, requirements that abortions could only be performed by physicians with clinical privileges at a nearby hospital and requirements that a registered nurse or nurse practitioner is in the clinic during abortions.
A Shawnee County judge ruled last year that abortion was already sufficiently regulated as healthcare in Kansas and that the additional requirements unconstitutionally impeded upon a person’s access to the procedure.
In court documents, the Center for Women’s Health in Overland Park said the regulations would make it difficult if not impossible to continue providing abortions.
Proponents of the law have said it came in response to poor conditions at a Kansas City, Kansas, abortion clinic.
“That ensured that they would have sanitary conditions,” Danielle Underwood, a spokeswoman for the Value Them Both Association, said during Tuesday’s event.
According to Kansas Department of Health and Environment data, 478 pregnancies were ended by dilation and evacuation in Kansas in 2021. The procedure accounted for 6.1% of the total abortions in the state.
These abortions typically are performed in the second trimester.
If the 2015 law takes effect, the procedure would only be permissible in the state if it was deemed necessary to preserve the life of a mother or prevent irreversible impairment of a major bodily function. The 2015 law referred to the procedure as “dismemberment abortion” rather than the medical name.
Doctors who performed the procedure could be charged with a misdemeanor on the first offense and a felony for subsequent offenses.
Ashley All, a spokeswoman for abortion rights group Kansans for Constitutional Freedom, pointed to a dilation and evacuation abortion obtained by Kelsey Walker, a Kansas City woman who told The Star she could have died during delivery if she didn’t get an abortion.
“It has become quite clear in the past few weeks that these bans are often black and white, while pregnancy is extremely complicated and each one is unique. Many women, including Kelsey Walker, need a certain procedure in order to save their lives. Women deserve the right to make decisions about their pregnancy and any complications with their family and their doctor, not the hospital lawyer,” All said in a statement.
What happens if the amendment passes?
It’s unclear exactly how the legal process for the restrictions will play out if the amendment passes.
Kansas Attorney General Derek Schmidt, the likely Republican nominee for governor, appealed the rulings striking down both bills and the cases are awaiting final rulings from the Kansas Supreme Court. If the court does not issue a ruling before Aug. 2, the justices will be obligated to consider any constitutional amendments in future rulings.
But consideration of the constitutional amendment does not guarantee the court will find the laws to be constitutional.
“There might still be other potential challenges that could kick in,” said Rick Levy, a constitutional law professor at the University of Kansas.
The court could send the laws back to lower court for reconsideration and abortion rights activists are likely to bring additional arguments for why they should remain unenforceable.
Meanwhile, Levy said, anti-abortion litigants will likely ask the court to lift existing injunctions on enforcement while the litigation concludes.
“There would probably be a pretty strong argument for that,” Levy said.
Brittany Jones, an attorney and lobbyist for the conservative Protestant group Kansas Family Voice, said the exact response will depend on how quickly the court acts and what their ruling is.
“It will depend exactly where the laws are in the appeal process and how the Court applies the re-instated legal standard,” Jones said in an email. “It will require some sort of judicial ruling and likely a legislative response in order to re-enact our Health and Safety Regulations and our Dismemberment Abortion Limit.”
Humphries said specifics of possible legislative action has not yet been determined. If Democratic Gov. Laura Kelly wins reelection, lawmakers may need to gather a two-thirds majority on the policies to overcome a gubernatorial veto.
“It’s not something that we’ve dealt with before so I think we’re just going to see what needs to be done,” Humphries said.
Abortion rights advocates said Tuesday that they expect the Legislature to go further than simply enforcing current laws.
“These laws were correctly struck down by the court. We know that passing the amendment is the opening anti-abortion legislators are waiting for to pass a total ban, and they will do that, making these laws irrelevant,” the Trust Women Clinic in Wichita said in a statement Tuesday.
This story was originally published July 13, 2022 at 5:00 AM with the headline "If Kansans vote for abortion amendment, these restrictions could go into effect."
