WICHITA, Kan. — The Kansas Court of Appeals refused Friday to implement the state’s first-in-the-nation ban on a common second-trimester abortion method, ruling in a split but groundbreaking decision that the conservative state’s constitution protects abortion rights independently from the U.S. Constitution.
The 7-7 ruling – released on the anniversary of the U.S. Supreme Court’s Roe v. Wade decision – could be used by abortion rights supporters to challenge other state laws restricting abortion. If the decision is upheld, it would allow state courts to protect a woman’s right to end her pregnancy beyond federal court rulings.
Tie votes uphold the ruling being appealed, meaning Friday’s ruling sides with a Shawnee County judge who put the 2015 law on hold while he considers a lawsuit challenging the ban. The lawsuit has yet to go to trial, but the judge said the Kansas Constitution’s general language about personal liberties extends to abortion rights – which the appeals court also supported, indicating how it may rule if it gets the full case.
“The rights of Kansas women in 2016 are not limited to those specifically intended by the men who drafted our state’s constitution in 1859,” Judge Steve Leben wrote on behalf of the seven judges who sided with the lower court.
The state will quickly appeal to the Kansas Supreme Court, Attorney General Derek Schmidt said, adding that the split decision offered little clarity on the constitutional questions.
If the decision stands, it would “immensely strengthen protection” of abortion rights when Planned Parenthood and similar organizations challenge legislation and laws that restrict abortion in Kansas, said Laura McQuade, president and CEO of Planned Parenthood Advocates of Kansas and Mid-Missouri.
At the top of that list is a pending legal challenge to 2011 law, also temporarily blocked by the courts, that includes requiring abortion providers to have admitting privileges at a local hospital.
Anti-abortion group Kansans for Life also recognized the potential impact. Its legislative director, Kathy Ostrowski, suggested pushing for a constitutional amendment to clarify that the Kansas Constitution doesn’t specifically protect abortion rights.
“I can’t understate how horrific this is, and how problematic some litigation might be, under a ruling that the state has a right to abortion,” Ostrowski said Friday.
The law at the center of the case prohibits doctors from using forceps or similar instruments on a live fetus to remove it from the womb in pieces. Such instruments are commonly used in second-trimester abortions.
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