Analysis: Kansas abortion ruling could have sweeping effects
Topeka A judge's decision to block Kansas from banning a common second-trimester abortion procedure eventually could reshape the state's legal climate and intensify conservative Republicans' push to change how the highest court is selected.
The law prohibiting a procedure that critics describe as dismembering a fetus likely creates too big an obstacle for women seeking abortions, Shawnee County District Court Judge Larry Hendricks ruled last week, an order that'll remain in effect until he reviews a lawsuit filed by an abortion rights group.
He also declared that the Kansas Constitution creates a right to an abortion that is at least as strong as what the U.S. Constitution provides — a specific finding that the state's highest court has not made previously. Attorneys say that if his finding is upheld, Kansas courts eventually could join a handful of other states in protecting abortion rights more than the U.S. Supreme Court, which could jeopardize restrictions in Kansas that the nation's highest court has upheld in other states in the past such as special rules for providers or limits on late-term procedures.
That has the most influential anti-abortion group at the Statehouse, Kansans for Life, redoubling efforts to overhaul how vacancies on the Kansas Supreme Court are filled. Already, Gov. Sam Brownback and other GOP conservatives have pushed to overhaul the selection process.
Kansans for Life Executive Director Mary Kay Culp said its interest in the issue "went off the charts" with Hendricks' decision.
"This is going to have a lot of impact on Kansas law, so I hope people recognized what just happened in that courtroom," Jessie Basgall, an attorney for the group, said of Hendricks' ruling.
The new law was supposed to take effect July 1 and would have prohibited doctors from using forceps, clamps, scissors or other medical implements on a fetus so to remove it from the womb in pieces. The law calls the procedure "dismemberment abortion."
Such instruments are commonly used in dilation and evacuation procedures, which the Center for Reproductive Rights says accounts for 95 percent of all second-trimester abortions nationally. The center filed the lawsuit on behalf of two Kansas abortion providers and argued that U.S. Supreme Court decisions allowing state restrictions still don't permit a ban on the dilation and evacuation procedure.
The lawsuit said the ban violates provisions of the Kansas Constitution's Bill of Rights promising equal protection of the law and protecting "life, liberty and the pursuit of happiness." The center argued that the state constitution protects abortion rights, even without mentioning abortion or a right to privacy.
The Kansas Supreme Court declared in a 2006 abortion records case that it "customarily" interprets the state constitution to "echo federal standards," but specifically declined to declare that a specific right to obtain an abortion exists under the Kansas Constitution.
Hendricks did, citing the language about echoing federal protections. That means the Kansas Supreme Court will have to settle the issue, said Janet Crepps, senior counsel for the Center for Reproductive Rights.
"As many as 10 state supreme courts have recognized an independent right to abortion," Crepps said. "Several states — California, Alaska, Montana, Florida — have recognized that it's protected more strongly than (under) the federal constitution."
Changing the selection process for the Kansas Supreme Court requires amending the state constitution by passing proposals through both legislative chambers with two-thirds majorities, then gaining the approval of a majority of voters in a statewide election.
Currently, a lawyer-led nominating commission screens applicants and names three finalists. The governor picks one, with no role for legislators. Supporters say the system minimizes political considerations, while critics say it's too insular and gives too much power to a small group of attorneys.
Brownback has supported both electing the justices and having the governor appoint them, subject to state Senate confirmation, with no nominating commission.
In assessing Hendricks' ruling, Brownback spokeswoman Eileen Hawley said, "This is yet another example of the need for greater democratic accountability and participation in the selection and retention of our Kansas judges."