Evenly divided Kansas Appeals Court says ‘no’ to state abortion law

TOPEKA, Kan. An evenly divided Kansas Court of Appeals ruled Friday against a state law that bans an abortion procedure common in the second-trimester of pregnancy.

The Appeals Court’s tie vote, seven to seven, means a lower court’s decision to put the abortion law on hold stands for now, setting up a likely review by the Kansas Supreme Court.

The case is historic, the court noted, the first in which a Kansas appellate court “has been required to decide whether the Kansas Constitution provides a right to abortion.”

The Kansas Legislature last year passed the first-in-the-nation ban on the procedure, which it described as dismemberment of the fetus. The abortion law was titled the “Kansas Unborn Child Protection from Dismemberment Act.”

A Shawnee County judge blocked the law from taking effect last summer, ruling that the right to an abortion was protected by the Kansas Constitution and that the law likely would was too big of an obstacle for women seeking to end their pregnancies. The state appealed the ruling.

The Appeals Court Friday was evenly split on whether the state constitution protected the right to an abortion.

“We are not called upon in this case to announce, or to act upon, our own personal views regarding abortion,” Judge Steve Leben wrote. “We have done our best to carry out that obligation to define the liberty of all — squarely based on the precedents of the Kansas Supreme Court and the United States Supreme Court, which we are required to apply — and not to mandate our own moral code or religious beliefs.”

The opinion in favor of an abortion right in the Kansas constitution said the state Supreme Court has interpreted a section of the Kansas Constitution’s Bill of Rights to be equivalent to the due process and equal protection clauses of the U.S. Constitution’s 14th Amendment.

“Because the right to abortion is part of the liberty protected by the due process clause to the 14th Amendment, the Kansas Constitution provides the same right to abortion that is protected under federal law,” the ruling stated.

The opposing opinion said the right to an abortion was not stated in the Kansas Constitution and was not guaranteed.

“The subject of abortion places the pregnant woman’s liberty interest directly at odds with the unborn child’s right to life,” wrote Chief Judge Thomas Malone wrote. “The balancing of these interests is a question of public policy. Our state legislature, not an intermediate court of appeals, is the branch of government charged with the development of public policy on behalf of Kansas citizens.”

The challenge to the state law was brought by the Center for Reproductive Rights on behalf of Dr. Herbert Hodes and Dr. Traci Nauser, who are father and daughter at an Overland Park health center.

The organization argued that the law, which it said applies to 95 percent of second-trimester abortions nationally, meant women would either have to forgo abortions or choose riskier procedures.

In the law, the procedure is described as a doctor using “clamps, grasping forceps, tongs, scissors or similar instruments” to remove the “unborn child one piece at a time.”

The law included exceptions to protect a woman’s life and physical health.

The state’s lawyers were adamant in their appeal that no court had ever recognized a right to an abortion under the Kansas Constitution, a finding it called “stunning.”

Even if there were such a right, the U.S. Supreme Court has said that a state may prohibit a particular abortion procedure when reasonable alternatives were available, the lawyers said.

“Here, the Kansas Legislature prohibited only one method of performing a common second-term abortion procedure, while a number of safe alternative methods remain available,” the state’s appeal said.

Gov. Sam Brownback called on the Supreme Court to take up the matter.

“I am deeply disappointed in the court’s decision to allow dismemberment abortions of a living child to continue in the state of Kansas,” Brownback said in a written statement. “The court’s failure to protect the basic human rights and dignity of the unborn is counter to Kansans' sense of justice.”

Seven of the court’s 14 judges chose “to create law based upon their own preferences rather than apply the law justly and fairly,” Brownback said.

Opponents of the law said its graphic language was meant to heighten emotions in the abortion debate. The dilation and evacuation procedure was the safest for women’s health in the second trimester, they said.

About 9 percent of abortions in Kansas last year used the dilation and evacuation procedure, the state health department said. Most abortions are banned in Kansas in the 22nd week of pregnancy and later.

The date of the Appeals Court decision Friday coincided with the anniversary of the landmark U.S. Supreme Court ruling in Roe v. Wade, Jan. 22, 1973, a date being observed by anti-abortion groups in Topeka and around the country.

Kansans for Life said the ruling was “outrageous” and called on the state Supreme Court to quickly review it.

The law, the anti-abortion group said in a statement, was designed to pass muster with the U.S. Supreme Court. The state has the right to show respect for the developing unborn and to insure the integrity of the medical profession, the group said.

“Even pro-abortion justices of the U. S. Supreme Court have acknowledged that the dismemberment of a living unborn child is as brutal and inhumane a method of abortion as the partial-birth abortion procedure, which is now illegal throughout the country,” the statement said.

Planned Parenthood Advocates of Kansas and Mid-Missouri heralded the court’s recognition of a right to an abortion in the Kansas Constitution.

The law was “an irresponsible attempt to restrict women’s access to safe, legal, surgical abortions,” Laura McQuade, the abortion rights group’s president, said in a statement. “It is unfortunate Kansas lawmakers repeatedly need judicial reprimands for their unconstitutional policymaking when it comes to women’s health.”

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The judges who ruled there is not a right to abortion in the Kansas Constitution, led by Chief Justice Malone, utilized a stricter reading of the constitution. The right to an abortion is not stated in the Constitution and therefore not guaranteed, Malone wrote. Furthermore, the Legislature was right to regulate abortion procedures.

“The subject of abortion places the pregnant woman’s liberty interest directly at odds with the unborn child’s right to life,” Malone wrote. “The balancing of these interests is a question of public policy. Our state legislature, not an intermediate court of appeals, is the branch of government charged with the development of public policy.”

On the second question, McAllister argued S.B. 95 does not constitute an undue burden because reasonable alternative procedures to dilation and evacuation exist. Crepps argued dilation and evacuation is the safest option, calling alternatives “complex, risky and, in some ways, experimental.”

In his ruling, Leben wrote that by banning dilation and evacuation procedures, the state of Kansas is banning “the most common, safest procedure and leaving only uncommon and often unstudied options available.” Malone, meanwhile, declined to address the undue burden issue, noting its irrelevance if the Kansas Constitution does not guarantee the right to an abortion.

Split rulings at the Kansas Court of Appeals are highly unusual because nearly all decision are made by three-judge panels. Rarely does the full court hear a case, as it did on this matter, and even more rarely does the court split, according to Lisa Taylor, the court’s public information officer.

Friday’s ruling comes on the anniversary of the U.S. Supreme Court’s 1973 ruling in Roe v. Wade. The anniversary is commemorated each year by anti-abortion marches across the country, including at the Kansas Capitol.

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This story was originally published January 22, 2016 at 11:29 AM with the headline "Evenly divided Kansas Appeals Court says ‘no’ to state abortion law."