Nearly two years later, Kansas Supreme Court has not ruled whether there is a “right” to abortion in the state Constitution

By Dave Andrusko

It’s one of those stories that could have written pretty much anytime over, say, the last 18 months. The headline to AP reporter John Hanna’s story (as published in the Washington Post) is “Kansas abortion foes brace for state Supreme Court decision.”

Hanna is alluded to the mysterious inaction of the Kansas Supreme Court which heard a state challenge to a lower court injunction that enjoined Kansas’s ban on dismemberment abortions nearly two years ago.

The consensus across the board was that a majority of the justices seemed favorably disposed to the bizarre argument that 160 years after the state Constitution was drafted, a hitherto unknown right to privacy even broader than the Supreme Court found in its 1973 Roe v. Wade decision, had been discovered.

Kansans for Life Executive Director Mary Kay Culp told NRL News Today, “If the Kansas Supreme Court’s seven members, a majority of which were appointed by pro-abortion former Gov. Kathleen Sebelius, rule the way we fear, our only choice will be to amend our 1859 state constitution to make it crystal that it does not contain a ‘right to abortion’ in any way, shape or form.”

At the March 16, 2017, oral arguments, Janet Crepps, an abortion attorney for the New York-based Center for Reproductive Rights (CRR), maintained that the Unborn Child Protection from Dismemberment Abortion Act “victimized” women. She told the justices that second-trimester non-dismemberment abortion methods were “experimental” and “painful” for women and an affront to their “privacy, autonomy, dignity and bodily integrity.”

Solicitor General Stephen McAllister countered, “If the people of Kansas want to create a constitutional right to abortion, they have a ready mechanism for doing so — the constitutional amendment process. Kansans have not been shy about utilizing it.”

SB 95, which Kansas enacted in 2015, prohibits abortions in which the fully-formed unborn child is torn apart with sharp metal tools, bit by bit, while still alive, inside her mother. Nine states have subsequently passed laws banning dismemberment abortions of living unborn babies. They include Oklahoma (2015); West Virginia (2016); Mississippi (2016); Alabama (2016); Louisiana (2016); Arkansas (2017) ;. Texas (2017) ; Kentucky (2018); and Ohio (2018).

Back to Hanna’s story. Various theories are floated why the justices have not issued a decision. They include election politics (a decision that threatens to gut essentially all abortion laws –if not all– would have energized pro-lifers in the last election) to the idea that such a decision would be “a groundbreaking case of first impression,” Kansas Attorney General Derek Schmidt told Hanna, although he added, “but my goodness, two years?”

This is hardly the first time the abortion movement has turned to a state Constitution to create a protective wall around the “right” to abortion. For example, Hanna wrote,

California voters added a right to privacy to their state’s constitution in 1972, and courts there have struck down even restrictions on public funding for abortions. In 2000, Tennessee’s highest court declared that the state constitution protected abortion rights; abortion foes did not pass an amendment until 2014.

The Iowa Supreme Court ruled last year that the state constitution protected abortion rights.

With respect to Tennessee, Hanna is talking about “Amendment 1,” the successful 2014 ballot measure that stated “Nothing in this [state] Constitution secures or protects a right to abortion or requires the funding of an abortion.”

Pro-abortionists contested that outcome all the up until last November when the United States Supreme Court agreed with a three judge panel of the Sixth Circuit which had unanimously concluded “…[I]t is time for uncertainty surrounding the people’s 2014 approval and ratification of Amendment 1 to be put to rest.”