(CN) — The Kansas Supreme Court affirmed two lower court decisions supporting abortion rights on Friday, ruling to prohibit enforcement of a state law banning dilation and evacuation abortions, and blocking a state statute regulating abortion providers more tightly than other medical specialists.
In both cases, the state appealed decisions from Shawnee County District Court, located in the state capital city of Topeka, 2011’s Senate Bill 36 — which created new licensing requirements for abortion facilities — and Senate Bill 95, which passed in 2015 and targeted dilation and evacuation abortions.
Justice Eric S. Rosen, writing for the majority, sided with abortion providers that opposed SB 95’s ban on dilation and evacuation, one of the safest and most common second trimester abortion procedures.
“The state may have an opinion, but what matters is the evidence. And the providers’ evidence showed SB 95 may cause a patient to ‘lose faith in the medical profession when she discovers that she will be denied a procedure (D&E), or subjected to additional procedures (fetal-demise procedures), for no medical reason whatsoever but rather for reasons of pure paternalism,'” Rosen wrote in the dilation and evacuation decision.
“The state has failed to show SB 95 furthers any interest in the medical care provided to Kansans or the integrity of the medical profession,” Rosen added.
Both decisions cited Section 1 of the Kansas Bill of Rights in the state constitution, which guarantees equal rights.
“We stand by our conclusion that section 1 of the Kansas Constitution Bill of Rights protects a fundamental right to personal autonomy, which includes a pregnant person’s right to terminate a pregnancy.” Rosen wrote in the D & E decision.
The justices ruled 5-1 in both decisions, with Justice Keynen “K.J.” Wall Jr., not participating and Justice Caleb Stegall dissenting.
“…it is noteworthy that the majority cannot bring itself to acknowledge the government’s compelling interest in unborn human life,” Stegall said in his dissent of the D&E decision.
In its other key abortion ruling Friday, the court also affirmed a court order that blocked enforcement of regulations for abortion facilities.
In a decision authored by Justice Melissa Taylor Standridge, the majority found the laws infringed on the right to abortion and that the state did not meet its burden to show the laws furthered its interest in protecting maternal health.
“The inalienable natural right of personal autonomy under Section 1 of the Kansas Constitution Bill of Rights allows a woman to make her own decisions regarding whether to have an abortion and, although not absolute, this right is fundamental. Accordingly, laws that actually infringe on the right to abortion, regardless of the degree of infringement, are subject to strict scrutiny,” wrote Standridge.
In his dissent in the regulation decision, Stegall argued the majority departed from its own precedent and that the decision would subject a host of other regulations — such as those governing barbers and tattoo artists — to strict scrutiny.
“A massive swath of government action is now subject to the most rigorous and exacting standard of constitutionality — strict scrutiny,” he wrote. “And no legal scholar or judge anywhere has ever even tried to suggest that all or even most of the plainly legitimate ends of government action could possibly survive such a test.”
The decisions come more than a year after lawyers argued the cases in front of the Kansas high court. Both cases were argued for the state by Kansas Solicitor General Anthony Powell during oral arguments in March 2023. The appealed cases were handled by separate attorneys for The Center for Reproductive Rights.
“Kansas voters made it loud and clear in 2022: the right to abortion must be protected. Now the Kansas Supreme Court has decisively reaffirmed that the state constitution protects abortion as a fundamental right,” said Nancy Northup, president and CEO of the Center for Reproductive Rights in a statement on Friday, referring to a 2022 vote where Kansas voters rejected an amendment to the state constitution that said there was no right to abortion in the Sunflower State.
Kansas law currently bans abortion at 22 weeks of pregnancy and later, representing a less restrictive law than in all adjoining states except Colorado. In 2019, the court first ruled the state constitution protects the right to abortion.