What’s at stake in the lawsuit against Kansas' new abortion law?

TOPEKA – The Kansas Court of Appeals on Wednesday weighed whether the Kansas Constitution protects a right to have an abortion.

All 14 members of the court were on the bench for the hearing over a lawsuit challenging a new state law that prohibits a type of abortion common in the second trimester: dilation and evacuation abortions. The law is the first of its kind in the nation.

A Shawnee County judge granted an injunction in June that prevented the law from going into effect. The Court of Appeals will determine whether to uphold that injunction.

The procedure

In the D&E procedure, a physician uses surgical tools and perhaps suction to remove the fetus. Abortion opponents say the procedure is inhumane and call it “dismemberment abortion.” Abortion-rights supporters say it is safer for women than other forms of abortion.

Judge Michael Buser noted that the procedure is used in 95 percent of second-trimester abortions, according to information submitted to the court. Attorney Janet Crepps, who represents abortion providers seeking to overturn the law, said it can be an outpatient procedure performed in a day. She said “decades of medical practice have established” that D&E is the safest method for women in the second trimester.

Asked the state’s interest in restricting the procedure, Solicitor General Stephen McCallister said “protecting the dignity of human life” and “protecting the integrity of the (medical) profession.”

“It’s a procedure that many would find revolting,” McCallister said.

What new law does

Abortion-rights supporters say the law effectively bans D&E, but McAllister contended that “the state isn’t banning D&E. It’s banning D&E the way the plaintiffs want to perform it.”

The law’s wording is that the fetus must be dead before dilation and evacuation can begin. Crepps said this requirement would force women to undergo a riskier procedure that requires an injection of a “large spinal needle through the abdomen or vagina to cause demise” of the fetus. She said this would require a hospital stay and is not commonly done in the United States.

“The state would be requiring physicians to experiment on women,” she said. “The proposed alternatives here present an unprecedented burden.”

Mary Kay Culp, executive director of Kansans for Life, the anti-abortion group that drafted the bill, contended after the hearing that the alternative method is a more humane form of abortion than the standard D&E procedure. She compared it to using lethal injection as a form of capital punishment instead of other forms of execution.

“The way this abortion is done, the baby’s death is caused by being torn apart, whereas in the alternative, the baby’s death is by poison,” she said.

What the court is considering

The hearing focused on the request for a temporary injunction against the law and not its constitutionality.

But because the plaintiffs are arguing their case on the grounds that the state constitution protects a right to have an abortion, most of the hearing centered on that argument.

Crepps, representing Overland Park physicians Herbert Hodes and Traci Hodes Nauser, argued that Sections 1 and 2 of the Kansas Bill of Rights provide due process rights similar to the 14th Amendment of the U.S. Constitution, which guarantees that the government cannot infringe on personal liberties. Because due process rights have been used at the federal level to protect the right to an abortion, she contended the same right is protected under the Kansas Constitution.

McAllister argued that the framers of the Kansas Constitution did not intend to protect abortion in 1859 and that the state’s constitution does not guarantee substantive due process. Several of the judges pointed out that the sections had been read in the past to have an effect similar to the 14th Amendment, but McAllister said the Kansas Supreme Court had never used that argument to overturn a law.

Judge Melissa Standridge pressed him on this point. “Your position is we, the citizens of Kansas, have no substantive due process rights unless we amend the constitution, no individual protections under the Kansas Constitution?” she asked.

McAllister said the state would be barred from enforcing a law that violated the federal guarantee of due process but not from passing one under its own constitution. “Kansans can amend the constitution if they want to recognize” abortion as a right, he said.

Crepps said after the hearing she was “surprised that the state of Kansas would take such an extreme position on the scope of citizens’ rights, because saying that there are no substantive due process rights goes well beyond abortion.”

She said that substantive due process has been used to protects rights of contraception, interracial marriage, homosexual relationships and “a whole realm of personal privacy that the government isn’t entitled to intrude in.”

Why state court?

The judges repeatedly pressed Crepps about why the plaintiffs didn’t take their case to federal court, noting that the Kansas Supreme Court has not ruled that the state constitution guarantees a right to abortion and that there’s much more extensive case law at the federal level.

Judge David Bruns said former Attorney General Phill Kline, a vehement abortion opponent, had previously argued that “the Kansas Constitution speaks to abortion and was defeated on that.”

The judges said Crepps could have included federal law in her initial position to the Shawnee County District Court. Crepps said the case involves “Kansas physicians … challenging a law passed by the Kansas Legislature” and that there was “nothing untoward in Kansas citizens coming to the Kansas courts.”

If Crepps prevails in this argument, the case would establish a stronger protection for abortion under state law. Abortion opponents see this as an attempt to knock down other abortion restrictions.

“If a right to an abortion is discovered here ... it can knock down every single abortion law we’ve passed and can make the state pay for abortions,” Culp said. “So there’s a lot at stake.”

What happens next

The court could rule to uphold the injunction, in which case an appeal to the Kansas Supreme Court could be likely. Or it could halt the injunction and send the case back to district court. Several judges noted that very limited evidence had been presented in the case before the injunction was granted.

This story was originally published December 9, 2015 at 12:40 PM with the headline "What’s at stake in the lawsuit against Kansas' new abortion law?."