Split Vote Blocks Anti-|Abortion Law in Kansas

TOPEKA, Kan. (CN) - An even appeals court split Friday, the first in Kansas history, will keep the state from enforcing a ban against second-trimester abortions.

Coinciding with the anniversary of the U.S. Supreme Court's landmark abortion decision Roe v. Wade, the 7-7 vote fails to overturn a hold that a lower court put on the controversial law, which prohibits doctors from using instruments like forceps to remove a live fetus in pieces from the womb.

Such instruments are commonly used in dilation and evacuation procedures, however, which the Center for Reproductive Rights calls the safest and most common way for U.S. women to terminate a pregnancy in the second trimester.

Gov. Sam Brownback condemned the case's outcome though, saying he is "deeply disappointed in the court's decision to allow dismemberment abortions of a living child to continue in the state of Kansas."

"The court's failure to protect the basic human rights and dignity of the unborn is counter to Kansans' sense of justice," Brownback added. "The closeness of today's decision highlights the importance of every single judge in upholding the right to life. Seven judges have chosen to create law based upon their own preferences rather than apply the law justly and fairly. I support the attorney general in his call on the Kansas Supreme Court for a swift decision protecting the unborn."

Kansas law dictates that when appellate courts are equally divided, the lower ruling stands.

Speaking for the jurists who voted to affirm the injunction, Judge Steve Leben rebuffed the governor's criticism.

"Although our court is equally divided, we believe we have still fulfilled our role in the Kansas justice system, we have still fulfilled our role in the Kansas justice system," Leben said.

The case will "almost surely" be heard by the Kansas Supreme Court, Leben added.

SB 95, which the Kansas Legislature passed last year, is the first of its kind in the nation to bar doctors from removing a live fetus from a womb.

Two abortion clinic owners from Overland Park, near Kansas City, filed suit in Shawnee to stop the bill from taking effect in July, resulting in an injunction awarded by Judge Larry Hendricks.

The historic case is the first in which an appellate court has been required to decide whether the Kansas Constitution provides a right to abortion. Its merits hinge on whether the Kansas Constitution ensures the right to an abortion and also whether the bill places an undue burden under the U.S. Constitution on a woman's right to have an abortion.

"We are not called upon in this case to announce, or to act upon, our own personal views regarding abortion," Leben wrote. "We have done our best to carry out that obligation to define the liberty of all - squarely based on the precedents of the Kansas Supreme Court and the United States Supreme Court, which we are required to apply - and not to mandate our own moral code or religious beliefs."

By banning the second-trimester method, Kansas banned the "most common, safest procedure ... leaving only uncommon and often unstudied options available," Leben wrote.

Carol Tobias, president of National Right to Life, decried the court's decision.

"The split decision by the appellate court tragically says it acceptable to rip a fully-formed living unborn child, limb-by-limb, from her mother's womb," Tobias told the Topeka Capitol Journal. "We do not think this will sit well with the majority of Kansas and changes will come."

The Center for Reproductive Rights wasted no time weighing in on Friday's ruling.

"Today's ruling is a landmark victory for Kansas women, whose rights and health have been under siege for far too long," said Nancy Northup, president of the Center for Reproductive Rights.

"The state Court of Appeals has rightly affirmed that Kansas women have the right to safely and legally end a pregnancy under their state constitution, free from political interference," she added. "The Center for Reproductive Rights will continue to stand against these relentless attacks on constitutionally protected health care and fight against laws that jeopardize these fundamental rights."

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