Kansas Supreme Court Strikes Near-Ban on Common Abortion Procedure, Licensure Requirements
- July 12, 2024
In a pair of 5-1 decisions issued July 5, the Kansas Supreme Court struck down a state law largely prohibiting the most common method of second-trimester abortion—dilation and evacuation (D&E)—and various provider licensing restrictions that apply only to abortion facilities.
The case involving D&E was before the state high court for a second time after it held in a 2019 decision that the Kansas Constitution protects a fundamental right of personal autonomy, "which allows a woman to make her own decisions regarding her body, health, family formation, and family life,” including whether to continue a pregnancy.
The high court remanded to the lower court to determine whether the 2015 legislation, which prohibits D&E procedures except “to preserve the life of the pregnant woman" or to prevent a "substantial and irreversible physical impairment of a major bodily function," withstood strict scrutiny.
On remand, the district court held the state failed to show the legislation passed constitutional muster under a strict scrutiny analysis and issued a permanent injunction.
The high court affirmed, declining to reverse its earlier ruling that the Kansas Constitution protects a right to abortion and holding the D&E prohibition did not survive strict scrutiny. Its decision comes after Kansas voters in 2022 rejected an amendment that would have eliminated abortion protections under the state constitution.
According to the high court, even if the legislation furthered a compelling interest in promoting the value and dignity of human life, the state failed to show the law was narrowly tailored to that end.
The high court also rejected the state’s asserted compelling interest in “the regulation and protection of the medical profession and the medical care provided to Kansas,” citing its failure to produce any evidence supporting its position. The law “eliminates a safe and common medical procedure and leaves patients subject to procedures that are rarely used, are untested, and are sometimes more dangerous or impossible,” the high court observed.
Similarly, in a second opinion, the high court found the licensing restrictions for abortion facilities did not survive strict scrutiny. According to the high court, the state “failed to meet its evidentiary burden to show the Challenged Laws further its identified compelling interest in protecting maternal health and regulating the medical profession as it relates to maternal health.”
A lengthy dissent said the majority's "betrayal of this court's promise of neutral, uniform, and rational constitutional adjudication is as farreaching as it is audacious—and its damaging impact on this institution's legitimacy will be felt for years to come."
Hodes & Nauser, MDS, PA v. Kobach, No. 124,130 (Kan. July 5, 2024).
Hodes & Nauser, MDS, PA v. Stanek, No. 125,051 (Kan. July 5, 2024).