Kansas Supreme Court strikes down abortion restrictions, clinic rules in major decisions
The Kansas Supreme Court struck down a series of abortion rules and restrictions on Friday in twin opinions affirming its landmark decision that the state constitution protects the right to end a pregnancy.
The justices in two near-unanimous decisions tossed a ban on dilation and evacuation abortions, a common second trimester surgical procedure, and a series of abortion-specific clinic regulations that providers have long fought. The opinions marked the end of two years-long legal battles over rules, which never took effect.
The rulings delivered a stinging but expected blow to anti-abortion activists and Republicans, who for years sought to steadily chip away at access. The opinion built upon the court’s key 2019 decision, which upheld the right to an abortion under a broader guarantee of bodily autonomy.
“We stand by our conclusion that section 1 of the Kansas Constitution Bill of Rights protects a fundamental right to personal autonomy, which includes a pregnant person’s right to terminate a pregnancy,” Justice Eric Rosen, appointed by Democratic Gov. Kathleen Sebelius in 2005, wrote in the majority opinion striking down the dilation and evacuation ban.
The Bill of Rights says, “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”
Rosen wrote that the state “must show any infringement of that right withstands strict scrutiny.”
The decision was 5-1 in both cases, with Justice Caleb Stegall, an appointee of Republican Gov. Sam Brownback, the sole dissenting vote. Justice K.J. Wall, an appointee of Democratic Gov. Laura Kelly, didn’t participate.
Kansas has become a crucial national access point for abortion in the two years since the U.S. Supreme Court overturned the federal right to an abortion, leading Missouri and a swatch of mostly southern states to quickly implement bans. Some 20,700 abortions were performed in Kansas in 2023, according to estimates from the Guttmacher Institute, a research organization supportive of abortion rights.
Voters in 2022 rejected a state constitutional amendment that would have overturned the Kansas Supreme Court’s 2019 decision and allowed lawmakers to ban abortion. Any change in abortion regulations in the state is now watched closely for any potential effects to access nationwide.
Friday’s decision likely offers abortion providers greater certainty about the regulatory landscape in the state as they open additional clinics.
The opinion capped years of courtroom drama over clinic regulations first enacted in 2011 and a 2015 ban on dilation and evacuation abortions. Both laws were bogged down in legal challenges and never took effect, even as the possibility of their future enforcement hung over providers.
Abortion providers long argued the regulations would risk putting Kansas’ abortion clinics out of business. The law required medication abortions to be physically administered by a physician in the same room as a patient, and required physicians to perform tasks usually performed by a medical assistant.
The law also established inspection requirements beyond what is expected of other facilities and established a minimum recovery time for patients.
Kansas “failed to meet its evidentiary burden to show the Challenged Laws further its identified compelling interest in protecting maternal health and regulating the medical profession as it relates to maternal health,” Justice Melissa Taylor Stanbridge, a Kelly appointee, wrote in the majority opinion striking down the 2011 clinic rules.
The court’s decisions reflected the skepticism several justices showed at oral arguments in March 2023. Kansas Attorney General Kris Kobach, a Republican, had argued the court should overturn its 2019 decision.
One of his top aides, Kansas Solicitor General Anthony Powell, argued the Dobbs case, which overturned federal protections for abortion, completely changed the reality for legal arguments surrounding the issue. But some justices weren’t convinced at the time.
“Dobbs said we should return the issue to the people to persuade one another and then vote, and we’ve done that in Kansas,” Justice Dan Biles said during oral arguments. “How do we factor that in when you’re asking us to change our view, our interpretation of the Kansas Constitution when the people voted so forcefully?”
Single dissent
In striking down the restrictions, the Kansas Supreme Court made clear it would defer to the precedent set in the 2019 opinion, even as the makeup of the court has changed. Three of the seven justices on the court joined after the 2019 decision, but all three were appointed by Kelly, who supports abortion rights.
Stegall, the lone dissent, warned that the court’s majority, in its decision striking down the clinic rules, had backed away from its previous opinion protecting a fundamental right to bodily autonomy and had narrowed the right to only protect abortion.
“The majority has accused me of playing Chicken Little to ‘cataclysmic’ effect,” Stegall wrote, adding that the majority of the justices had stripped protections away “from everyone not a member of the majority’s favored class—pregnant women seeking abortions—upon discovering that when exercised by most people most of the time, personal autonomy is simply not ‘profound’ enough to satisfy the majority’s moral sense of worthiness.”
“That this remains the only gauge by which such things might be judged is, perhaps, the worst cataclysm of all,” Stegall wrote.
The Kansas Supreme Court decisions came as another legal fight over abortion restrictions plays out in Johnson County District Court. Abortion providers are challenging a state law that took effect on July 1 that requires them to ask patients their reasons for seeking an abortion.
The new law mandates abortion providers to survey women, asking them to choose the most important reason for getting an abortion. Those reasons include financial stress, rape, fetal disabilities, or the health of the mother as options. The survey does not include an “other” option, a point of contention for opponents.
The judge in the case, Christopher Jayaram, previously blocked existing abortion regulations, including some in place for decades.
In October, the judge stopped officials from enforcing a 24-hour waiting period for abortions. He also halted enforcement of rules mandating abortion providers, without evidence, post information in clinics and online warning abortions can increase the risk of breast cancer and premature birth in future pregnancies.
