Kansas Supreme Court to consider for the first time whether right to abortion exists in Kansas Constitution

With six simple words Monday, the Kansas Supreme Court agreed to consider the most divisive question before it in recent years: whether the Kansas Constitution guarantees the right to an abortion.

“Considered by the court and granted,” wrote Chief Justice Lawton Nuss in response to a request by Attorney General Derek Schmidt that the high court decide the matter.

The case — known formally as Hodes and Nauser v. Schmidt — centers on the constitutionality of Senate Bill 95, passed by the Kansas Legislature in 2015 and signed by Gov. Sam Brownback, which bars the use of certain techniques used in dilation and evacuation abortions.

“This ban prohibits the gruesome abortion method of tearing apart fully-formed, living babies — limb by limb — until they bleed to death,” wrote Kathy Ostrowski, legislative director for Kansans for Life, in a blog post Tuesday.

Abortion-rights advocates claim dilation and evacuation is the safest procedure for second-term abortions and the most common. Two abortion clinic owners from Overland Park filed suit last year to stop SB 95 from taking effect, arguing it placed an unfair burden on their right to perform abortions.

In June of 2015, Shawnee County District Court Judge Larry Hendricks agreed and went even further, ruling Section 1 of the Kansas Constitution ensures the right to terminate a pregnancy.

It was the first time a Kansas judge had determined the existence of such a right in the state constitution.

The full 14-judge Kansas Court of Appeals heard the case in December and made its decision Jan. 22, splitting evenly for the first time in its 39-year history. The unprecedented tie vote meant Hendricks’ ruling remained in effect.It also led attorneys on both sides of the abortion debate to ask the Kansas Supreme Court to weigh in.

“Only this court can provide an authoritative answer to the important constitutional questions presented here,” wrote Stephen McAllister, the state’s solicitor general, in a court filing Feb. 1.

The abortion providers, Herbert Hodes and Traci Lynn Nauser, are represented by the Center for Reproductive Rights and its senior counsel, Janet Crepps.

“In light of the evenly divided Court of Appeals ruling that the Kansas Constitution Bill of Rights protects the right to abortion, review by this court is warranted,” Crepps wrote to the Supreme Court on Feb. 16.

It isn’t yet clear when the Supreme Court will hear the abortion case. The court is scheduled to hear a school finance case May 10 and then take a break from oral arguments until mid-September.

“The fundamental right of women in Kansas to access abortion and receive the health care that their physician thinks is best is at stake in this case,” Crepps said Tuesday.

Advocates and attorneys on both sides believe the court’s ruling will have ramifications for other abortion laws passed in recent years. If the justices find a right to abortion exists in the Kansas Constitution, Crepps has said she plans to challenge more restrictions on abortion in state courts.

“There are two other cases pending challenging provisions that have been passed by the Legislature, so the decision in this case could have an impact on both of those cases and future restrictions that might be passed by the Legislature,” Crepps said in December.

Kansans for Life believes the ramifications will extend beyond the Kansas border and into states that have passed similar restrictions on dilation and evacuation procedures.

“The challenge we face is whether a majority of the Kansas Supreme Court will follow the U.S. Supreme Court’s holding that allows states to ban barbaric abortion methods,” said Mary Kay Culp, KFL’s executive director.