Politics & Government

Evenly divided Kansas Appeals Court says ‘no’ to state abortion law

The case comes in a lawsuit filed by two abortion providers who say the 2015 law unconstitutionally burdens women seeking abortions.
The case comes in a lawsuit filed by two abortion providers who say the 2015 law unconstitutionally burdens women seeking abortions. File illustration

The Kansas Court of Appeals blocked a state law banning an abortion procedure Friday, finding in a split decision that the state’s constitution protects the right to an abortion.

The 7-7 ruling came on the anniversary of the U.S. Supreme Court’s Roe v. Wade decision.

Under Kansas law, a tie vote by the Court of Appeals upholds the lower court’s order that put on hold a law blocking dilation and evacuation abortions, a procedure used in 95 percent of second trimester abortions.

It’s the first time the state’s appeals court has held that the state constitution protects abortion rights independently from the U.S. Constitution.

Gov. Sam Brownback said in a statement that he was deeply disappointed and that the closeness of the “decision highlights the importance of every single judge in upholding the right to life.”

Attorney General Derek Schmidt said he plans to appeal the ruling to the Kansas Supreme Court.

Abortion opponents said they feared the ruling would undermine other abortion regulations.

“I can’t overstate how horrific this is,” said Kathy Ostrowski, legislative director for Kansans For Life, the anti-abortion group that had championed the law.

Laura McQuade, CEO of Planned Parenthood of Kansas and Mid-Missouri, said if the Kansas Supreme Court upheld the ruling, it would “immensely strengthen (abortion) protections in the state of Kansas.”

What the lawsuit says

The lawsuit was filed by two abortion providers who said the 2015 law unconstitutionally burdened women seeking abortions.

Both sides had assumed that the issue would need to be decided by the Supreme Court, said Schmidt, who was in Wichita to speak to the Pachyderm Club on Friday.

“We both requested that the high court immediately take the case and resolve it,” he said. “We were a little bit surprised … when the Kansas Supreme Court declined to do that.

“The only option … was to appeal to the Court of Appeals, which is what we did.”

Schmidt said the appeals court, understanding the “momentous” nature of the issue, took the unusual step of having all 14 judges hear the case, something that hasn’t happened since the 1980s.

He said he hadn’t consulted with the governor but was confident “we’ll be appealing the decision in relatively short order. I’m hopeful the Supreme Court will agree to hear the case and will move it expeditiously. We need to know what the answer is.”

The law, signed by Brownback last spring, prohibits doctors from using forceps or similar instruments on a live fetus to remove it from the womb in pieces. Doctors call that dilation and evacuation; backers of the law call it dismemberment.

Abortion-rights supporters warned that an alternative procedure touted by the state’s attorneys would have been more invasive and less safe for women.

What’s next

Julie Burkhart, CEO of the Trust Women Foundation in Wichita, said the court sent a “clear signal that the Legislature and the governor’s office has taken one step too far” and that it’s time for the state to “come back into balance” on women’s healthcare.

Ostrowski was not optimistic that the Kansas Supreme Court, primarily made up of appointees from before Brownback took office, would rule in her side’s favor if it does consider the case. She talked of other options, including a federal appeal or amending the state constitution.

The ruling has helped heighten tensions between Republican policymakers and the state’s courts.

“The Kansas Court of Appeals rewrote the constitution today … and so we’re going to have to speak back loudly,” Lt. Gov. Jeff Colyer told anti-abortion activists gathered at the Capitol later on Friday.

Contributing: Dion Lefler of The Eagle; Associated Press