A judge for Shawnee County District Court in Kansas blocked the state’s ban on Dilation and Evacuation (D&E) abortions Wednesday.
The Kansas legislature passed Senate Bill 95, commonly known as the Kansas Unborn Child Protection from Dismemberment Abortion Act, in 2015. The Act prohibits D&E abortions, providing exceptions only for when the abortion is “necessary to preserve the life of the pregnant woman” or when “continuation of the pregnancy will cause a substantial and irreversible impairment of a major bodily function of the pregnant woman.” Finally, the Act creates a civil cause of action and imposes criminal penalties against those who perform a D&E abortion.
Medical professionals filed suit in 2015, challenging the Act on behalf of themselves and their patients. The plaintiffs argued that the Act violates Section 1 and 2 of the Kansas Constitution Bill of Rights.
The district court granted the plaintiffs’ request for a temporary injunction, thus preventing enforcement of the Act until the court could make its final decision. The state appealed. The Kansas Court of Appeals affirmed the district court’s decision, finding that the Kansas Bill of Rights protected “the fundamental right to abortion.” The court also approved the district court’s application of the US Supreme Court’s undue burden test, finding that the plaintiffs would likely succeed in their constitutional challenge.
In 2019, the Kansas Supreme Court granted review and also affirmed the district court’s temporary injunction. However, the Supreme Court concluded that Section 1 of the Kansas Bill of Rights provides rights that “are broader than and distinct from” those found under the Fourteenth Amendment to the US Constitution. As a result, the Supreme Court directed the district court to apply a strict scrutiny standard on remand to the Section 1 claims.
On remand, the district court applied the strict scrutiny standard, which required the state to “show that the Act [was] narrowly tailored to serve a compelling government interest.” The court found that the State met its burden “to prove [that] a compelling government interest exist[ed] in promoting respect for the value and dignity of human life, born and unborn.” Yet, the court found that the State’s ban was not narrowly tailored, stating:
Banning dismemberment abortion is not a narrowly tailored solution to the compelling state interest Defendants seek to address because, according to the evidence before the Court, it would leave no alternative for second trimester abortions other than more complicated, less reliable, less tested, and higher risk procedures.
Overall, the court found that D&E is a standard method of abortion and the most commonly used abortion procedure at approximately 14 to 15 weeks. Thus, the court found that the Act was unconstitutional and granted the plaintiffs’ request for a permanent injunction.