The court stands by its prior ruling that the Kansas Constitution confers a right to abortion.
The Kansas Supreme Court on July 5 struck down two laws regulating abortion, reaffirming its stance that the state’s constitution confers a right to the procedure.
The court found in two separate cases that a 2011 law imposing strict licensure requirements on abortion facilities and a 2015 ban on dilation and evacuation abortions infringed on a woman’s constitutional right to personal autonomy.
The majority opinions cited the court’s controversial 2019 holding that the “equal and inalienable natural rights” established under Section 1 of the Kansas Bill of Rights include the right to personal autonomy and, by extension, abortion.
The justices’ decision comes in the wake of the U.S. Supreme Court’s June 2022 Dobbs decision overturning the national right to abortion that was created by its 1973 ruling in Roe v. Wade.
Kansas Solicitor General Anthony Powell argued in March that the state Supreme Court should “revisit” the issue in light of Dobbs and return the issue to the people.
But Kansas Supreme Court Justice Dan Biles pushed back, saying, “We’ve done that in Kansas.”
Just two months after the Dobbs decision was handed down, Kansas voters rejected a constitutional amendment that sought to clarify that their constitution does not include a right to abortion and that the state Legislature has the authority to pass laws regulating the procedure.
“We had a vote in August, and pretty overwhelming, to reject the prospect of amending the constitution. I think that is the elephant in the room,” Justice Biles, who joined the majority in both decisions, said.
Justice Caleb Stegall, the sole dissenting voice, criticized the majority for engaging in “arbitrary policy-making designed to enshrine only [emphasis in original] court-preferred rights in section 1’s guarantees.”
Noting that “dozens” of other laws regulate what a person can legally choose to do with their body, Justice Stegall predicted that “a massive swath of government action” would now be subjected to “the most rigorous and exacting standard of constitutionality—strict scrutiny.”
He wasn’t the only justice with doubts, however.
While Justice Evelyn Wilson joined both majorities, she explained in a concurring opinion that she made her decisions out of deference to the 2019 precedent and because the voters had already weighed in.
As for whether the Kansas Constitution establishes rights to personal autonomy or abortion, Justice Wilson said the answers to those questions were still unclear.
One of the two cases that the court decided was a continuation of the 2019 case, in which the court also established that state laws regulating abortion are subject to strict scrutiny.
At the time, the justices remanded the case to the district court to apply that standard in determining whether the 2015 ban on dilation and evacuation abortions—a procedure that involves the dismemberment of the unborn child—was unlawful. The district court later found that to be the case, holding that there was “no reasonable alternative” to that method.
The second case was a lawsuit challenging new licensure requirements for abortion clinics—with enforcement including annual surprise inspections—that all abortions be performed by physicians with clinical privileges at a nearby hospital, that abortion pills be administered in person and in the presence of the prescribing physician, and that all abortions after 22 weeks be performed in a hospital or ambulatory surgical center.
Kansas law currently permits abortions until 22 weeks of pregnancy, after which the procedure is prohibited except in medical emergencies. For the procedure to be performed on a minor, an abortion provider must obtain the written consent of both the child and a parent or guardian.
Other restrictions that the state’s Republican-led Legislature has passed—including a mandatory 24-hour waiting period—remain tied up in legal challenges.