Kansas Court of Appeals mulls state protections for abortion

TOPEKA, Kansas (AP) – A lawsuit against a Kansas ban on a common second-trimester abortion procedure has forced the state Court of Appeals to consider how much the state constitution protects abortion rights.

At issue is whether the Kansas Constitution guarantees the right to an abortion.  The issue first came up after the Kansas legislature enacted a first-in-the-nation ban on so-called “dismemberment” abortions.

In July, a judge in Shawnee County imposed a temporary ban on the law.  Wednesday’s hearing was the first time since 1989 the full 14-member Court of Appeals has heard a single case.

The lower court ruling in July agreed with attorneys for two abortion providers who said that the Kansas Constitution independently protects abortion rights. The state’s lawyers argue that such protections can’t be read into the constitution’s broad language about individual liberty.

The law enacted this year prohibits doctors from using forceps, clamps, scissors or similar instruments on a live fetus to remove it from the womb in pieces. Such instruments are used in dilation and evacuation procedures that are common during the second trimester.

Abortion advocates who oppose the second-trimester abortion ban say it violates the basic rights of Kansans under the state constitution.

Lawyers for the state say otherwise.

Kansas Solicitor General Stephen McAllister says the Kansas Consitutition doesn’t guarantee any rights unless the people expressly – or clearly – add them.

“Kansas has a ready mechanism for the people of Kansas to recognize a right to an abortion if they choose to do so,”said McAllister, “and that is [a] Constitutional Amendment, which the people have used many times since 1859, including on controversial topics, and to recognize individual rights.”

If the injunction that strikes down the new law is upheld by the appeals court, there likely would be an appeal to the Kansas Supreme Court.

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