BY: TIM CARPENTER, Kansas Reflector
TOPEKA — Abortion clinic regulations embraced years ago by the Kansas Legislature and Gov. Sam Brownback were declared unconstitutional Friday by the Kansas Supreme Court in an opinion confirming the majority’s belief the state Bill of Rights guaranteed the right to end a pregnancy.
The Supreme Court’s majority used the regulation case to reinforce its 2019 decision declaring women had a fundamental right to bodily autonomy and abortion services under Section 1 of the Kansas Constitution’s Bill of Rights. The Supreme Court issued a separate opinion on Friday that struck down the ban on a specific abortion procedure.
The Supreme Court’s majority agreed with a Shawnee County District Court judge’s decision in the regulation case that the Kansas attorney general’s office failed to demonstrate the benefit to maternal health or the health profession of abortion clinic licensure regulations that exceeded mandates applied to other medical facilities. The controversial statute waded into all aspects of abortion facilities to include staffing, procedures, equipment and the physical environment.
Justice Melissa Standridge, author of the 5-1 majority opinion, said the attorney general’s office didn’t carry the burden of showing the regulatory framework adopted in 2011 and 2015 advanced a compelling state interest defined as extremely weighty, possibly urgent, and rare.
“Our holding is supported by uncontroverted evidence in the record that affirmatively contradicts — for many provisions—the state’s claim that those provisions further the state’s identified compelling interests,” wrote Standridge, an appointee of Democratic Gov. Laura Kelly. “Without this showing, the challenged laws do not survive strict scrutiny and are constitutionally infirm.”
Haircuts, nudity?
Standridge’s opinion withdrawing Brownback-era abortion regulations, which featured separate concurrences by Justices Evelyn Wilson, Eric Rose and Dan Biles, affirmed the lower court’s order in favor of two abortion doctors who filed the lawsuit. Of significance, no part of the abortion regulation law survived the challenge despite insertion of a severability clause, which hypothetically could preserve constitutional elements of an otherwise flawed law.
Justice K.J. Wall recused himself, but Justice Caleb Stegall’s dissent repeated an assertion “unrestricted access to abortion” in Kansas was the judicially preferred policy of the Supreme Court. As such, he wrote, “judicial coherence and consistency” would be sacrificed to policy. In the dissent, he scorned legal arguments of several peers.
“The betrayal of this court’s promise of neutral, uniform and rational constitutional adjudication is as far-reaching as it is audacious,” Stegall wrote. “Its damaging impact on this institution’s legitimacy will be felt for years to come.”
Stegall theorized that establishing a fundamental right to personal autonomy in relation to abortion would jeopardize regulation of food supplies, restaurants, drug use, tattoos and piercings, car seat belts, barber services, student vaccinations, assisted suicide and public nudity.
“What about the right to cut and style one’s hair?” Stegall said. “Surely, the government does not have a compelling interest in who trims my beard?”
Standridge used her majority opinion to denounce Stegall’s “false alarm” that standards of constitutional infringement in abortion rights cases would invite lawsuits associated with ideas of personal autonomy. The standard was adopted five years ago and predictions of countless regulation challenges had yet to materialize, she said.
“The dissent trivializes and attempts to minimize the fundamental nature of a woman’s decision to continue or terminate a pregnancy by comparing it to a man’s decision to grow or trim a beard,” Standridge wrote. “This facetious comparison is both inappropriate and denigrating to women faced with decisions between childbirth and abortion.”
Abortion history
In 2011, Brownback signed the GOP-inspired Senate Bill 36 to substantially expand licensing requirements for abortion clinics and establish severe penalties for criminal violators. In Topeka, a district court judge granted a temporary injunction to block implementation. In 2015, the Legislature and Brownback altered abortion law in a bid to convince the district court to dissolve the injunction.
The Supreme Court, meanwhile, issued the decision in 2019 that said access to abortion was an inalienable natural right. It was linked to personal autonomy and encompassed the right of a woman to terminate a pregnancy. Based on Supreme Court guidance, the district court struck down the state abortion clinic regulations as unconstitutional. The judge granted summary judgment to plaintiff abortion providers Traci Lynn Nauser and Herbert Hodes.
Amid the legal battle over clinic regulation, Kansas voters in August 2022 defeated a proposed amendment to the Kansas Constitution that would have nullified the Supreme Court’s interpretation of the constitutional right to abortion.
Danielle Underwood, a spokeswoman for the anti-abortion lobbying organization Kansans For Life, said the Supreme Court made abortion clinics less safe for patients.
“Extremely liberal judges of the Kansas Supreme Court have now overturned basic health and safety standards for abortion facilities,” Underwood said. “It hurts to say, ‘We told you so,’ to the many Kansans who were misled by the abortion industry’s assurances that it would still be ‘heavily regulated’ in our state.”
The regulations
This abortion regulation suit involved a collection of restrictions that increased the cost of services and delayed a patient’s ability to receive care. One section of the law set recovery-related restrictions so patients had to stay twice as long as medically necessary and delayed a patient’s ability to receive an abortion because fewer cases could be scheduled in one day.
Health professionals had to monitor patients’ vital signs throughout the abortion procedures, even when no anesthesia was used. Regulations required a nurse station with visual observation of each patient in recovery areas.
Another regulation said a physician performing a pelvic exam must be accompanied by a second person, even if the physician performing the exam was a female. The statute mandated abortion facilities give the Kansas Department of Health and Environment access to medical records, including patient-identifying information.
“They create an additional scheme just for abortion care,” said Caroline Sacerdote, an attorney with the Center for Reproductive Rights that represented the plaintiffs.
In written briefs and oral arguments, the state’s lawyers said there was no constitutional infringement because the law wasn’t an unqualified ban on abortion.
“These regulations, while perhaps imposing some inconvenience, ultimately do not impair a woman’s ability to obtain an abortion,” said Anthony Powell, who serves as solicitor general under Attorney General Kris Kobach.