A Kansas judge’s ruling on a new abortion law led to an unusual full-court hearing Wednesday on the overarching question of whether the Kansas Constitution contains a right to abortion.
The 90-minute court hearing before the Kansas Court of Appeals did not reveal the 14 judges’ thinking, said one pro-life leader, but the judges’ upcoming ruling could have a major impact on state abortion laws: If it finds a constitutional right to abortion in the state constitution, it could lead to invalidation of other state abortion laws.
The appellate court was asked to consider two questions: Does the Kansas Constitution contain a “fundamental right to abortion” — as asserted by Shawnee County District Judge Larry Hendricks in his June 30 ruling that temporarily blocks enforcement of the new Unborn Child Protection from Dismemberment Abortion Act — and, secondly, did Judge Hendricks properly interpret federal law concerning states’ rights to regulate abortion.
Kansas Solicitor General Stephen McAllister argued that the Kansas Constitution does not have a right to abortion, and that the Kansas Supreme Court has not found such a right.
“Not one [opinion] in 150 years has found a right to due process,” Mr. McAllister said, referring to the legal basis typically used in arguing abortion rights, according to The Topeka Capital-Journal.
Mr. McAllister further argued that Judge Hendricks misapplied federal law to the new law. It is legal because it bans a specific method — but not all methods — of a second-trimester abortion and properly reflects the state’s right to promote respect for life, including the lives of the unborn.
The dismemberment law generally forbids abortion doctors from slicing, cutting and tearing apart a living fetus. Such dilation and extraction (D&E) abortions — typically used on fetuses that are 12 to 22 weeks gestation — are “gruesome” and “barbaric,” say pro-life advocates.
Other types of D&E abortions would remain legal, including those that use suction only and those performed on a dead fetus.
Two Kansas abortion providers, Dr. Herbert Hodes and Dr. Traci Nauser, successfully sued to block the law in Judge Hendricks’ court.
Their attorney, Janet Crepps of the Center for Reproductive Rights (CRR), argued Wednesday that Judge Hendricks correctly saw a right to abortion in the Kansas Constitution’s protection of individual liberty.
“It’s important to have the Kansas courts recognize these rights under the Kansas Constitution,” Ms. Crepps said.
Genevieve Scott, a staff attorney at CRR, said she thought the hearing went “extremely well,” and she felt confident at least eight judges would find a right to abortion in the state constitution. This would overturn the new law as unconstitutional, she added.
Kathy Ostrowski, legislative director for Kansans for Life, said the abortion doctors are “trying to break new ground. They want the court to be an activist court, and they found at least one [district] court that was willing.” But Kansas case law “does not uphold” Judge Hendrick’s ruling, she said.
Still, a lot is at stake with the case given the overarching constitutional question, said Ms. Ostrowski. The judges did not reveal their thinking, which leaves “both sides wondering” what they will decide, she said.
Chief Justice Thomas Malone said he and his colleagues would rule “as soon as we can.”
• This article is based in part on wire service reports.
• Cheryl Wetzstein can be reached at cwetzstein@washingtontimes.com.
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