(CN) — Months after Kansas voters overwhelmingly rejected a state constitutional amendment saying there's no right to abortion, the Kansas Supreme Court on Monday heard two abortion-related cases — and seemed skeptical of the state's position that voters aren't opposed to abortion restrictions.
Kansas Solicitor General Anthony Powell, who took office in January, made both cases for the state during Monday's proceedings. The appellee cases were handled by separate attorneys for The Center for Reproductive Rights.
Both appeals come after the high court held in 2019 that the Kansas Constitution protects a fundamental right to “personal autonomy" — including the right to terminate a pregnancy.
The first case involved an appeal of a lower court's permanent injunction of a ban on dilation and evacuation abortions. The second was an appeal of a permanent injunction against a regulating abortion clinics more strictly than other health care providers.
Powell argued that though Kansas voters may not want to ban all abortions, their vote did not mean they're opposed to reasonable restrictions on abortions. Regulating dilation and evacuation, “a particularly heinous procedure,” Powell said, was not inconsistent with what the public supports.
“That’s all we are coming to you today to ask you to uphold, is one reasonable restriction on abortion,” he said. “It’s our view that’s consistent with what the public was trying to tell us with that vote.”
The justices questioned if the dilation and evacuation is any more cruel than other forms of abortion, and if their role was to take a poll. They also questioned Powell on issues of bodily autonomy.
Powell said that the voice of the people, through their legislators, is the best way to handle abortion, as it pits two competing values — the life of the mother versus the life of the unborn child.
“I don’t think abortion is one of those issues that can be solved via constitutional fiat because we’ve got these two different values,” Powell said. “The only way I can see if we have any hope of wrestling this issue to the ground, you have to let the people work that out.”
Representing the abortion providcers, attorney Alice Wang said dilation and evacuation, which she referred to as “D&E,” is the safest form of second-trimester abortions and banning it violates the right to abortion.
“There are no material facts in dispute. Uncontroverted record evidence shows that D&E is the standard and most common method of abortions after approximately 14 to 15 weeks of pregnancy,” she said. “There is no reasonable alternative to D&E. And inducing fetal demise prior to D&E would force patients to endure additional, painful, invasive, medically unnecessary procedures that increase health risks and are experimental in some circumstances.”
As for the law mandating stricter regulations for abortion providers, the clinics say the law is an attempt to run them out of business. Proponents argue the regulations would make clinics safer.
“What I think most concerning for the state is that the plaintiffs oppose all the regulations that were propounded, even some, what I would least judge, as some of the least innocuous among them,” Powell said. “The acts and regs create minimal standards for public safety. The plaintiffs haven’t shown that they will infringe on a constitutional right to an abortion.”
Several justices grilled Powell, seeming to doubt many of his arguments.
“In the grand scheme of administrative regulations, or even laws, about this, the case is framed, and I think needs to be analyzed as, an overregulation case,” said Justice Dan Biles. “Killing an ant with an atom bomb, in effect.”
Attorney Caroline Sacerdote argued for plaintiffs.
“By targeting the right to abortion with an entirely unique regulatory scheme, the laws infringe on that right. They create an additional scheme just for abortion care, that applies on top of Kansas’ multiple, generally applicable schemes governing health care, to which plaintiffs are already subject,” she said.
The court did not render any decisions Monday. One of the seven justices, Keynen "K.J." Wall Jr., recused himself from both cases.
In November, six of seven Kansas Supreme Court justices faced statewide votes and each was retained by voters by wide margins for six-year terms.
The U.S. Supreme Court ruled in June 2022 that the U.S. Constitution does not protect abortion rights and that states can prohibit abortion. This led the Kansas Legislature to put the proposed amendment on the August 2022 ballot, asking if voters wanted to allow Kansas lawmakers to greatly restrict or ban abortion despite the Kansas Supreme Court's 2019 holding.
Voters soundly rejected the initiative, surprising many due to the conservative tilt of the state's body politic.
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