Thad Allton/The Topeka Capital-Journal via AP/Pool
Kansas Supreme Court Justice Carol Beier asks questions during 2017 oral arguments in a legal fight over a state law banning a second-trimester abortion procedure and the larger question of whether the state constitution's Bill of Rights offered a fundamental right to an abortion.
Lost amid the swath of states that have recently passed some of the most restrictive anti-choice legislation in the country is Kansas, a state that has long been hostile toward women who want to end their pregnancies, but one that has recently produced a state supreme court decision that may augur well for preserving abortion rights.
In late April, the Kansas Supreme Court ruled that the state constitution protects the right to an abortion in a 6-1 decision that struck down the Kansas Unborn Child Protection from Dismemberment Abortion Act, a law that banned dilation and evacuation (D&E) abortions, the most common and safest second-trimester procedure. The bill, which was passed in 2015 during the administration of former Governor Sam Brownback, a far right-wing conservative, was the first law in the country to outlaw D&E.
The Kansas Supreme Court's decision could signify the beginning of a shift in direction for the staunchly pro-life state. Last week, a lower Kansas court heard a case on the state’s prohibition against using telemedicine to administer medication abortion. The judges framed their decision around the issues of a woman’s personal control over her own body, including the ability to independently make choices about her health and well-being. Julie Burkhart, founder and CEO of Trust Women, a Kansas-based organization that provides abortion care to underserved communities, said the court’s ruling is a cautionary signal to lawmakers who try to pass laws that conflict with a person’s autonomy and the right to end a pregnancy.
“This is a state that has asserted that people's reproductive lives need to be taken into careful consideration when passing laws and that the state will uphold one's bodily autonomy,” says Burkhart, who co-founded Trust Women after the 2009 assassination of George Tiller, a Wichita physician who ran one of only three clinics in the U.S. that provided late-term abortions.
The state's embrace of the anti-abortion movement can be traced back to the summer of 1991, when members of the anti-abortion group Operation Rescue descended on the state’s three abortion clinics to disrupt their operations. Members of the group would block women from entering the clinics while reading passages from the Bible. Those tactics led to more than 1,600 arrests and forced the state’s three abortion clinics to close for more than a week. Some historians have argued that the conflict paved the way for today’s pro-life movement and helped Brownback win election.
Despite the court's decisive ruling, there are still several restrictive abortion measures in place in Kansas, including a mandatory waiting period that includes receiving state-directed counseling, a required ultrasound, and the telemedicine prohibition. The state has only four abortion clinics currently in operation—and only one that offers surgical abortion—compared to 53 crisis pregnancy centers, which NARAL describes as “fake health care clinics” that attempt to prevent women from getting an abortion.
Elizabeth Nash of the Guttmacher Institute, a national reproductive-health research organization, says that there's a chance that the other Kansas laws could potentially be struck down by the courts if they are contested. “Abortion rights supporters do have the opportunity now to bring cases challenging these restrictions with this new understanding of the state constitution,” she says. “Assuming those restrictions are struck down, then that means that patients would have fewer legal barriers to navigate.”
But anti-abortion conservatives and lawmakers could work even harder to roll back abortion rights in Kansas. In Tennessee and West Virginia, state supreme court decisions affirming the right to an abortion led to a conservative backlash that led to rollbacks of abortion protections in both states.
So far this year, eight states, including Georgia, Ohio, and Missouri, have passed “heartbeat bills” that outlaw abortion once a fetal heartbeat is detected around six to eight weeks. Alabama lawmakers just passed a law that would almost completely ban abortions, with no exceptions for rape or incest, and established criminal penalties for doctors who perform them.
Nash says that the bills passed in states like Tennessee, Alabama, Georgia, and West Virginia are so damaging because there are no other underlying legal protections. “But in places like Kansas and in other states where abortion rights have been enshrined in the state constitution, then you can rely on those protections to guard against abortion restrictions and bans,” she says.
Yet anti-choice Kansans could also overturn the court's ruling through a constitutional amendment, which would require a two-thirds majority in both houses of the legislature and approval from voters. Burkhart said that while a constitutional amendment could appear on the ballot in 2020, she's skeptical that it will gain support from voters.
“Kansans are going to be hard-pressed to vote their rights away,” she says. According to the progressive data and polling organization Data for Progress, 54 percent of Kansans have said they support abortion. Pew Research Center data also show that 58 percent of Americans believe that abortion should be legal in all or most cases.
“What we hear is that people, by and large, believe that women need to have access to reproductive health care, including abortion care,” says Burkhart, who canvasses in rural areas and hears from people who are particularly concerned about access to health care, including women's health care.
While Kansas now seems poised to enter a new era under the helm of the new Democratic Governor Laura Kelly, the state of abortion rights nationwide remains bleak. The reproductive-rights community hasn't been this worried since Planned Parenthood v. Casey in 1992, when many pro-choice advocates thought that the high court would overturn Roe.
“One thing I've learned is that a woman will go to great lengths to not be pregnant if she does not want to be pregnant,” says Burkhart. “A Supreme Court decision to overturn Roe would end up creating a class of even more desperate people.”
Anti-abortion advocates and conservative lawmakers hope that at least one restrictive state law will trigger a Supreme Court battle that would ultimately overturn Roe v. Wade. However, the Kansas court decision establishes a sharp rebuke to a Trump administration hell-bent on rolling back reproductive rights.
