Estimated read time: 3-4 minutes
This archived news story is available only for your personal, non-commercial use. Information in the story may be outdated or superseded by additional information. Reading or replaying the story in its archived form does not constitute a republication of the story.
TOPEKA, Kan. (AP) — A lawsuit blocking Kansas' first-in-the-nation ban on a common second-trimester method for terminating pregnancies forced an appeals court Wednesday to wrestle with whether the state constitution independently protects abortion rights.
Abortion opponents are watching the case before the full Kansas Court of Appeals closely. If the two doctors who've challenged the ban prevail, the state courts could find grounds to invalidate other state abortion laws — even if federal courts declare that the U.S. Constitution permits the restrictions.
During arguments from attorneys Wednesday, several judges expressed skepticism that broad language in the state constitution's Bill of Rights about individual liberty can be interpreted as specifically protecting abortion rights. But several also questioned the state's position that the language is only a statement of principles.
The state is appealing a Shawnee County judge's ruling in July that blocked the law from being enforced while the doctors' lawsuit is heard. The judge said the ban imposes an unconstitutional burden on women seeking abortions. He also said the state constitution protects abortion rights at least as much as the federal constitution — something higher courts haven't previously declared.
"It's important to have the Kansas courts recognize these rights under the Kansas Constitution," said Janet Crepps, a senior attorney for the New York-based Center for Reproductive Rights, which is representing the doctors.
The language in the state constitution cited by Crepps and her clients as protecting abortion rights says state residents have "natural rights" and "free governments" are created "for their equal protection and benefit." Steve McAllister, the state's solicitor general, noted that the language was written in 1859 and echoes the Declaration of Independence.
"I don't think there's any argument that those framers thought there was a natural right to abortion," McAllister said.
The Court of Appeals often issues decisions within six weeks of hearing arguments. But this case has involved all the appeals judges rather than the normal three-judge panel — a rare move that judicial branch officials believe last happened in 1989.
The court's decisions can be appealed to the Kansas Supreme Court.
The Kansas law prohibits doctors from using forceps, clamps, scissors or similar instruments on a live fetus to remove it from the womb in pieces, though the statute wouldn't apply if doctors ensure that the fetus dies beforehand. Such instruments are commonly used in dilation and evacuation procedures, which the Center for Reproductive Rights says are the safest and most common in the U.S. in the second trimester.
The lawsuit was filed by father-daughter Drs. Herbert Hodes and Traci Nauser, who perform abortions at their health center in the Kansas City suburb of Overland Park.
A similar Oklahoma law, set to take effect in November, also was blocked by a state-court judge.
Kansas law calls the banned method "dismemberment abortion," echoing a description coined by anti-abortion groups. But none of the attorneys or judges used such a phrase during Wednesday's hearing, which lasted nearly two hours.
In a 2006 decision, the Kansas Supreme Court said it customarily interprets the state constitution to "echo" federal protections for privacy and abortion rights. However, the court specifically declined to say whether the state constitution protects abortion rights independently.
"We would have to extend Kansas law and do something the Kansas Supreme Court hasn't done," Judge David Bruns told Crepps.
Judge Henry W. Green Jr. told Crepps the state constitution "belongs to the people." He said as a court, "We don't insert anything. We don't omit anything."
McAllister described the language in the Bill of Rights cited by Crepps as a statement of broad principles not meant to protect a specific list of rights, including due legal process.
But Judge G. Gordon Atcheson said, "It seems to me that it has some meaning."
___
Online:
Documents from abortion case: http://bit.ly/1XWRqmf
___
Follow John Hanna on Twitter at https://twitter.com/apjdhanna
Copyright © The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.
