Kansas Supreme Court Reaffirms Fundamental Right to Abortion

Last week, the Kansas Supreme Court issued two decisions striking down a series of state anti-abortion laws  passed by the Kansas Legislature. The first case challenged S.B. 95, a bill enacted by the Legislature in 2015 effectively banning the dilation and evacuation (“D&E”) abortion procedure in Kansas.

The case challenging the D&E ban was filed by the Center for Reproductive Rights on behalf of two physicians in Kansas who had safely performed D&E procedures for decades as part of their practice. The Plaintiff physicians contended that the Kansas Constitution Bill of Rights protects a woman’s right to an abortion and therefore the D&E abortion ban violated the Kansas Constitution. After suit was filed, the district court granted a temporary injunction halting the bans effectiveness and preserving the use of D&E abortions in Kansas. The Court found that the Plaintiffs were likely to prevail on their claim that S.B. 95 violated the Kansas Constitution. Defendants appealed, but the Kansas Supreme Court affirmed the lower court’s ruling and upheld the temporary injunction. In so ruling, the Kansas Supreme Court found that the Kansas Constitution protects a fundamental right of personal autonomy, “which includes the ability to control one’s own body, to assert bodily integrity, and to exercise self-determination. This right allows a woman to make her own decisions regarding her body, health, family formation and family life-decisions that can include whether to continue a pregnancy.” Hodes & Nauser, MDs, P.A. v. Schmidt, 309 Kan. 610, 614, 440 P.3d 461 (2019) (Hodes I) (emphasis added). However, in its 2019 ruling, the Kansas Supreme Court clarified that any infringement of the right to an abortion must withstand strict scrutiny. The Court then remanded the case to the district court, ordering the lower court apply the “strict scrutiny” standard to determine whether the legislation banning D&E violated the Kansas Constitution. Upon remand the district court held that the state failed to carry its burden showing that the legislation was constitutional and imposed a permanent injunction barring enforcement of S.B. 95.

The Kansas Supreme Court also ruled on a second related action involving a series of statutes and regulations involving the licensure of facilities that provide abortions. The challenged laws effectively singled out abortion providers and patients by imposing overly burdensome requirements. The Kansas Supreme Court found that the new licensing regimen for abortion facilities had the practical effect of increasing the costs of services and significantly delaying a patient’s ability to receive abortion services. Ultimately, the Court concluded that the abortion providers met their burden of showing the challenged laws infringed on the right to an abortion recognized in Hodes I, 309 Kan. 610. Moreover, the Court ruled that the state failed to meet its burden of showing that the challenged laws furthered its interests in protecting maternal health.

The Kansas Supreme Court’s rulings represent a victory for proponents of reproductive rights. Notably, the decisions have the practical effect of ensuring that Kansas providers can continue to utilize the D&E procedure to perform abortions. D&E is the most common abortion procedure used during the second trimester of pregnancy, and is the medically preferred approach to abortion after 13 weeks because it results in the fewest complications for women compared to additional procedures. Most importantly, the decisions decisively reaffirmed that the Kansas Constitution protects abortion as a fundamental right.

As new developments arise, we will continue to update our Dobbs Decision Resource Center. In the meantime, please contact one of the lawyers in Shipman’s Health Law practice group if you have questions about this ever-changing legal landscape.