The Kansas Supreme Court appeared unmoved on March 27 by Kansas Solicitor General Tony Powell’s arguments that its 2019 ruling recognizing abortion as a “fundamental right” under the Kansas Constitution should be overturned.
Powell spent Monday morning defending two state abortion laws before the court—a 2015 ban on second-trimester dismemberment abortions and a 2011 law that regulates abortion providers more strictly than other medical providers. Both laws have been blocked from enforcement due to legal challenges.
In his arguments, Powell held that the court’s 2019 ruling should be reconsidered in light of the U.S. Supreme Court’s June 2022 ruling in Dobbs v. Jackson Women’s Health Organization that abortion is not a right protected by the U.S. Constitution.
The justices, however, seemed skeptical.
“We had a vote in August, and it was pretty overwhelming to reject the proposition of amending the Constitution. I mean, I think that’s the elephant in the room,” Justice Dan Biles said, referring to a proposed amendment that would have declared that nothing in the state’s constitution creates a right to abortion.
But while that measure was rejected by roughly 59 percent of Kansas voters during the state’s 2022 primary election, Powell argued Monday that the vote “doesn’t matter” to the cases at hand. Holding that voters who rejected the amendment could still support reasonable restrictions on abortion, he asserted that the court should “let the people work it out” through the legislature.
Later, when Powell described dismemberment abortion—also known as a dilation and evacuation abortion—as “heinous,” Justice Melissa Standridge questioned what evidence had been presented to support that description.
“I am giving a pejorative description of it, but I’d like to think that we can agree that the dismemberment of a live, unborn child is a gruesome thing,” Powell said.
Nonetheless, of the six justices present for the hearing, five appeared unswayed by the state attorney’s arguments, though at one point, they did ask Alice Wang, attorney for the Center for Reproductive Rights, whether preserving life presented a compelling state interest.
In response, Wang noted that the court had addressed that question in its 2019 ruling, declining to recognize a compelling interest.
Kansas law currently allows for an abortion to take place up until 22 weeks gestation, well into the second trimester.
The Center for Reproductive Rights, a pro-abortion advocacy group, has held that a ban on dismemberment abortions would require providers to turn to alternatives that would be more expensive and pose greater risks to the mother’s health—an argument Biles appeared to agree with.
As for the 2011 law, while its supporters have held that it makes clinics safer for women, multiple justices appeared doubtful that the state has a compelling reason to treat abortion providers differently from other health care providers.
The court is not expected to issue its final rulings on the two laws for months.
