The Kansas Supreme Court dropped a controversial 6-1 decision that overturned a state abortion restriction and cemented a right to abortion into the Kansas Constitution. This prevents Kansas from enacting any further abortion restrictions for the time being; however, there is still a way for the pro-life people of Kansas to find a way out of this situation.

Estimated reading time: 4 minutes.

Kansas Judicial Center building. CC Image courtesy of A.D. Modlin on Flickr.

In 2015, Kansas passed a law banning Dilation and Evacuation abortions, otherwise known as D&E procedures or dismemberment abortions. The procedure is performed for most second trimester abortions, and this state law was among the first of its kind in the post-Roe era. After the law was struck down by a Kansas district court in 2015, the state appealed to the Kansas Court of Appeals, which issued a 7-7 split decision in 2016, failing to reach the majority necessary to overturn the lower court’s decision. The state of Kansas appealed once again, this time to the Kansas Supreme Court, which delivered a disappointing 6-1 decision to strike down the law.

The court’s decision was rooted in Section 1 of the Kansas Bill of Rights, which reads:

Equal rights. All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.

Section 1 of the Kansas Bill of Rights is similar to the Fifth Amendment of the U.S. Bill of Rights, which has often been interpreted to preserve “fundamental rights” such as the right to send your child to a Christian school and the right for schools to teach foreign languages.

However, this protection of unenumerated rights is a double-edged sword, as the Kansas Supreme Court ruled that the right to abortion was also a “fundamental” and “inalienable” right protected by Section 1 of the Kansas Bill of Rights. The court stated:

Section 1 of the Kansas Constitution Bill of Rights affords protection of the right of personal autonomy, which includes the ability to control one’s own body, to assert bodily integrity, and to exercise self-determination. 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.

As discussed in my recent article Pro-Choice Doesn’t Have to Mean Pro-Roe, the overturning of Roe v. Wade would allow all states to make their own abortion restrictions. Because of this decision from the Kansas Supreme Court, the state of Kansas would not be able to pass any additional abortion restrictions even if Roe was overturned, as the Kansas Supreme Court’s decision is binding within the state. Now, if Kansans want to nullify the court’s decision, they will need to pass an amendment to the Kansas Constitution protecting the right to life for unborn children.

Estimated reading time: 10 minutes.

Several states passed abortion restrictions in the last calendar year, and more are entertaining similar bills right now. Most of these laws, dubbed “heartbeat bills,” seek to restrict abortion after the fetus has a detectable heartbeat. All of these laws are in conflict with the holdings of Roe v. Wade and Planned Parenthood v. Casey, and the goal in passing most of them is to provide a test case to overturn Roe.

The “heartbeat bills” are generating a lot of press, and most people want to know what exactly the laws would do if they were allowed to stand. Unfortunately, there is a lot of misinformation and hyperbole circulating from deceitful or inaccurate sources. Our goal is to help you become informed about the contents of the laws in order to have accurate dialogue. Looking at the text of the laws and related state statutes and case law, we have compiled a reference table for you below:

Facts are as of 5/29/19

Footnotes:

• (+) The goal of the heartbeat bill is to ban abortions after 6 weeks, but the requirement to test for a heartbeat opens the door for abortions potentially as late as 12 weeks because some ultrasound methods don’t detect a heartbeat as early.
• * Missouri has backup bans at 14 weeks, 18 weeks, and 20 weeks in case earlier laws are stricken down.
• ** Case law strongly indicates that women will not be held liable for criminal abortion in Georgia; the same case frowns upon investigating miscarriages. However, it is possible that women could be charged with some type of manslaughter because the law declares unborn humans with heartbeats to be natural persons.
• *** A provision related to parental notification took effect immediately.