Kansas attorney general urges state Supreme Court to reverse 2019 abortion-rights decision
TOPEKA — Justices of the Kansas Supreme Court grilled the state solicitor general Monday about an appeal asking the state’s highest court to reverse its 2019 opinion declaring the right to abortion was embedded in the Kansas Constitution and then pivot to affirm a state law banning a specific abortion procedure.
Resumption of court debate on abortion rights in Kansas followed the U.S. Supreme Court’s decision in June overturning Roe v. Wade, the landmark precedent for a national right to abortion, and the August vote in Kansas rejecting a proposed state constitutional amendment to nullify the state Supreme Court’s view on the constitutional linkage of liberty, bodily autonomy and abortion.
The state Supreme Court, with one of seven members recusing, heard oral argument in a lawsuit challenging a state ban on the surgical abortion procedure known as dilation-and-evacuation and relied upon after 14 weeks or 15 weeks of pregnancy. The state’s appeal began after a Shawnee County District Court judge imposed a temporary order blocking enforcement of the law signed in 2015 by Gov. Sam Brownback.
In 2019, the state Supreme Court let stand the district court’s temporary ban and for the first time recognized the state Constitution’s bill of rights guaranteed the right to terminate a pregnancy. The state Supreme Court sent the suit back to district court to give the attorney general an opportunity to present evidence on whether the state had a compelling interest in enforcing the Brownback ban.
The district court determined two years ago the ban violated the Kansas right to abortion. The judge imposed a permanent injunction against enforcement of the statute because it didn’t afford women a reasonable alternative in the second trimester.
Attorney General Derek Schmidt, before leaving office in January, appealed the latest lower court decision in the case challenging the Kansas Unborn Child Protection from Dismemberment Abortion Act. It was filed by the Hodes and Nauser Center for Women’s Health in Overland Park.
Anthony Powell, hired by Attorney General Kris Kobach to serve as state solicitor general, urged the state Supreme Court to reconsider the 2019 decision, allow the ban on “dismemberment” abortion and give the Republican-controlled Legislature a wide berth to make abortion law. He said the state Supreme Court’s incorporation of the legal standard of strict scrutiny would make it difficult to hold off attacks by lawyers seeking to erode Kansas abortion law.
“In evidence that was presented in testimony to the Legislature, it’s a particularly heinous procedure,” Powell said. “It involves the dismemberment of a live unborn child.”
He said expression of fundamental values related to abortion by elected state senators and representatives was “much more important or weighty than having unelected judges make that decision.”
“Here the court has taken the word ‘liberty’ and then you’ve expanded it into a very large subset called ‘personal autonomy.’ And then out of personal autonomy, you plucked abortion out of that. People who look at that … say this doesn’t strike me as interpreting the constitution. It looks like it’s the values of a majority of the justices of the court,” Powell said.
In November, six of seven justices of the state Supreme Court faced statewide votes to determine whether they would receive new terms on the bench. Each of the justices on the ballot were retained by Kansas voters by wide margins. Justice K.J. Wall recused himself from this abortion case.
Uphold right to abortion
Alice Wang, staff attorney with the Center for Reproductive Rights, said there was no justification for the state Supreme Court to abandon its position that the state Constitution gave Kansans fundamental rights to personal autonomy, including abortion. The abortion law contained in Senate Bill 95, which inspired that major opinion, was challenged by two doctors represented by the Center for Reproductive Rights.
“As this court held in Hodes,” Wang said, “banning the most common, safest procedure and leaving only less common and less safe options violates the right to abortion.”
She said the state Supreme Court should reject the appeal based on “nothing more than legal arguments that this court already carefully considered and rejected. The state hasn’t shown that Hodes is clearly erroneous or undermined by changed circumstances.”
Wang said imposition of a high standard of court review was necessary because government infringement of a fundamental right was “inherently suspect.”
Justice Eric Rosen, an appointee of Gov. Kathleen Sebelius, asked Wang whether the state’s failure to meet its burden meant the case was essentially over.
“Yes, your honor,” she said. “This court should affirm the district court’s ruling.”
‘Dealing with limitations’
Justice Melissa Taylor Standridge, appointed by Gov. Laura Kelly, said a red flag in this case was lack of evidence offered by the state in district court to support a contention this abortion procedure was heinous. Other justices made inquiries about Powell’s reference to information not in the trial record.
“I’d like to think we could agree that dismemberment of a live, unborn child is a particularly gruesome thing,” Powell said.
Rosen pointed Powell to evidence before the district court indicating a ban on that abortion method would force pregnant women to undergo procedures that could place them at “much greater health risk than the procedure you’re complaining about.”
Powell was stuck with findings of fact that went unchallenged by the state at the district court level earlier in the legal process, said Justice Dan Biles, another Sebelius appointee.
“I’m dealing with some limitations here,” Powell said. “I understand the record is what it is. The court should have its blinders off and try to decide this case having the greatest amount of resources in front of it.”
Powell said the state Supreme Court had a responsibility to take notice of findings in other states, including information contrary to evidence from abortion rights lawyers in Kansas. He said the Iowa Supreme Court reversed itself on an abortion case.
“Different state and different constitution,” Rosen said.
“The question here involves such a big one. We’re talking about interpretation of our state Constitution, really a case of first impression, that involves a very important issue of abortion rights,” Powell said.
Powell said the state Supreme Court should reconsider its decision in context of the U.S. Supreme Court’s reversal of Roe v. Wade.
“You can’t deny the impact of that decision,” Powell said. “It’s changed the landscape considerably.”
Value of statewide vote
Kansas was among the first states after overturning of Roe v. Wade to ask people to consider amending a state Constitution so legislators had the upper hand on regulation of abortion. The Value Them Both amendment put forward by anti-abortion legislators was defeated by more than 170,000 votes.
“That’s the elephant in the room — one of them. How do we factor that in when you’re asking us to change our view, our interpretation — which is our job — of the Kansas Constitution when the people spoke so forcefully?” Biles said.
Powell, who was in the Legislature prior to serving as a judge, said Biles made a fair point about direct votes of the people, but he suggested that voting-box outcome shouldn’t be considered confirmation of how the state Supreme Court handled the Hodes decision.
“Sometimes the voters surprise you,” Powell said. “You don’t always know for sure what they’re saying by the way they vote.”
Biles didn’t sound convinced by Powell, and suggested the court had to be careful about “trying to bootleg too much into this record.”
Justice Caleb Stegall, appointed to the court by Brownback, indicated it would be difficult to conclude the August vote against the abortion amendment was a stamp of approval for the 2019 ruling.
“I understand why that matters in terms of representative democracy, political considerations, but as a matter of constitutional law, why would that matter?” Stegall said. “One of the things we often say as a court is that we don’t take public opinion polls about the meaning of the Constitution.”