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Kansas Supreme Court rules abortion is a constitutional right


Joyce Naltchayan | AFP

J-P Mauro - published on 04/27/19

The decision would keep abortion legal in Kansas even if Roe v. Wade were to be overturned.

The State Supreme Court of Kansas ruled that the state constitution protects the right of women to abort their pregnancies. The decision came early Friday morning after two years of debate.

The ruling would allow abortion to remain legal in the state even if Roe v. Wade, the Federal case that established a national right to abortion, should ever be reversed by the U.S. Supreme Court. The notion of such an occurrence has led Kansas’ conservative state legislators to ask voters to demand an abortion ban in the Kansas constitution, a move that is expected to begin next week, when lawmakers return to Topeka.

NPR reports only one sitting judge dissented in the decision. The ruling cited the Kansas Bill of Rights in the first sentence, “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”

Then it continued:

“We are now asked: ‘Is this declaration of rights more than an idealized aspiration? And, if so, do the substantive rights include a woman’s right to make decisions about her body, including the decision whether to continue her pregnancy? We answer these questions, ‘Yes.'” The court continued that “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. “The State may only infringe upon the right to decide whether to continue a pregnancy if the State has a compelling interest and has narrowly tailored its actions to that interest.”

The state has been arguing the case since 2015, when two doctors, Herbert Hodes and his daughter, Traci Nauser, challenged a ban on dilation and evacuation abortions. The law known as the Kansas Unborn Child Protection from Dismemberment Abortion Act prohibits dilation an evacuation abortion procedures except in cases of endangerment of the mother, or if the unborn baby was already lost. Kansas was the first state to initiate a ban of such practices, which are used in all late-term abortions.

While the procedure only accounts for roughly 9% of the state’s abortions, the violent nature of it has led the pro-life community to refer to it as “dismemberment abortion” rather than the scientific term “dilation and evacuation.” It is hoped that the more descriptive term might dissuade women from seeking the procedure.

In 2015, the law was initially blocked by Shawnee County District Judge Larry D. Hendricks, who believed the Kansas Bill of Rights contains clauses that protect the right to abortion. The state appealed and, in a sweeping 2016 ruling, the court upheld Hendrick’s decision. This was the first time a Kansas appellate court had found such a right in the Kansas Constitution.

The 14 judges of the appeals court each weighed in on the significant decision, but were split down the middle with 7 in favor and 7 against. When the appeals court is equally divided the original ruling is upheld.

The state appealed again in March 2017. Where these appeals normally only hear months of arguments, this particular decision took two years to determine.

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