Abortion rights protected

The Kansas Supreme Court on Friday declared the state constitution guarantees women the right to an abortion, effectively blocking a law that bans a second trimester procedure.

The long-anticipated ruling stems from a 2015 lawsuit and is expected to ignite interest in amending the constitution. By finding a right to abortion in the state constitution, the decision protects abortion rights for Kansas women even if Roe v. Wade is overturned.

The court said the Kansas Constitution's 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."

Democratic Gov. Laura Kelly praised the 6-1 ruling while Republican leaders blasted the decision, raising the possibility of putting a constitutional amendment before the general public.

Justice Caleb Stegall, an appointee of abortion opponent and former Gov. Sam Brownback, dissented from the majority opinion.

"Today," Stegall said, "we hoist our sail and navigate the ship-of-state out of its firm anchorage in the harbor-of-commongood and onto the uncertain waters of the sea-of-fundamental-values. Today we issue the most significant and far-reaching decision this court has ever made."

Abortion providers filed the lawsuit in 2015, after the Legislature enacted a ban on dilation and evacuation, a procedure used for 95 percent of patients who terminate a pregnancy in the second trimester. Abortion rights supporters say the procedure offers the safest medical care, while opponents called it barbaric and inhumane.

A Shawnee County District Court judge issued a temporary injunction, a court order that blocks enforcement of a law that is likely to be unconstitutional. The Kansas Court of Appeals split on the issue, placing the question before Kansas Supreme Court justices.

The high court heard oral arguments in March 2017. Friday's ruling upholds the injunction and sends the case back to the district court for trial.

The high court decision is based on language in the state constitution — a document that predates the federal amendment that provided a basis for Roe v. Wade — that declares "all men are possessed of equal and inalienable natural rights," including "life, liberty and the pursuit of happiness."

"The framers made clear the list was not intended to be exhaustive — rather, the listed rights are among the inalienable natural rights recognized by the provision," the high court said.

The majority opinion draws on debates during the drafting of the state constitution, as well as early court rulings that solidified personal rights.

In his dissent, Stegall draws on the works of Lewis Carroll, whose "Through the Looking Glass" features the same Alice who adventured in Wonderland and an invitation to believe "as many as six impossible things before breakfast." The majority opinion, Stegall said, is a "follow-the-white-rabbit experience."

Margaret Atwood's "Handmaid's Tale" also makes a cameo, with Stegall accusing the majority of portraying Kansas as a dystopia of oppression where the Legislature has commandeered the bodies and lives of unwilling women.

"Abortion restrictions are framed as lingering vestiges of a discredited and bankrupt patriarchy, fit only for history's slag heap," Stegall said.

The opinion overlooks the "inconvenient fact," Stegall said, that a majority of the 41 women serving in the Kansas Legislature voted in favor of the bill.

"Abortion has become the judicially preferred policy tail wagging the structure of government dog," Stegall said. "... Constitutional structure is the very thing securing and guaranteeing the full range of human liberty. History and reason suggest that those who, in the name of liberty, tear down that edifice will wind up out in the political elements, unsheltered and exposed to the cold wind of every arbitrary power."

The majority confronts Stegall's argument, saying "the overriding difference between the opinions is the degree of importance and substance that each attaches to individual liberty."

"The majority holds that individuals enjoy constitutional protection against unwarranted government intrusion in their personal business," the court said, "whereas the dissent leaves the individual nearly naked and defenseless, especially in the realm of individual sovereignty."

Those in the majority are Chief Justice Lawton Nuss, Justice Marla Luckert, Justice Carol Beier, Justice Eric Rosen and Justice Lee Johnson. Justice Dan Biles wrote a concurring opinion.

The ruling notes the heavy task now placed on the district court.

"Not only must it grapple with one of the most divisive issues of our time, it must also take into account advances in science that have blurred the sharp trimester-based lines used in Roe's strict scrutiny analysis," the high court said. "And it must do this with a deep awareness that the outcome of this case could generate a profound and personal consequence for many women. But we have great confidence in the trial court's ability to meet this challenge."