Anti-abortion activists and conservative Republican legislators shared enthusiasm Tuesday for placing on statewide ballots a constitutional amendment reversing the Kansas Supreme Court's declaration that a woman's right to end a pregnancy was embedded in the state constitution.
The controversial decision by the state's highest court has reverberated through the political system since it was handed down in April. The court's conclusion was substantial because it would remain the law of Kansas even if the Roe v. Wade case was overturned by the U.S. Supreme Court.
"My feeling is the court has overstepped the will of the people," said Sen. Julia Lynn, a Republican on the Legislature's interim judiciary committee.
Pro-life factions disturbed by the court ruling have contemplated options for going directly to voters to flip the decision, including passage of an amendment to the Kansas Constitution. Pro-choice forces who welcomed the Supreme Court's decision have weighed how far justices intended abortion rights to reach into statute and regulation.
Mary Kay Culp, executive director of the state's most prominent anti-abortion group, Kansans for Life, told the committee the proper response would be to amend the constitution. If pursued in 2020, it would be an election-year struggle likely to drive voters to the polls. To get on the ballot, two-thirds of the House and Senate would need to endorse an amendment.
"The people of Kansas have a remedy for the unfettered abortion on demand which the Supreme Court has foisted on the state, and this is to reverse the court's ruling by a constitutional amendment," she said. "We believe abortion is the ultimate exploitation of women."
She said text of an amendment was unlikely to ban abortion in Kansas but would affirm the opportunity of pro-life forces to preserve and expand limits on the procedure.
Teresa Woody, an attorney for plaintiffs in the landmark Kansas abortion case, said there was no need for amendment of the constitution with respect to abortion. She said justices reasonably held that the constitution's Bill of Rights included protections of the fundamental right of personal autonomy, which included determining whether to continue a pregnancy.
The high court declared that right could be regulated as long as the state established a compelling government interest and regulations were narrowly structured to promote that interest, said Rachel Sweet, regional director of public policy for Planned Parenthood Great Plains in Overland Park.
"It is quite rare that we amend our state constitution and shocking that legislators would proposed amending it to remove, rather than protect, individual rights," Sweet said.
The core of the dispute stems from the 2015 challenge of Kansas' ban on a second-trimester procedure by Overland Park abortion providers Herbert Hodes and Traci Nauser. They filed a lawsuit contesting the law signed by then-Gov. Sam Brownback to prohibit dilation and evacuation abortions except when needed to save the life of the mother or prevent impairment of the mother's health. The method has been referred to by anti-abortion activists as "dismemberment abortion."
A Shawnee County District Court judge issued an injunction preventing the law from taking effect and asserting the state's Bill of Rights provided a right to abortion. Attorney General Derek Schmidt's appeal resulted in a 7-7 tie in the Kansas Court of Appeals.
Upon review by the Supreme Court, Schmidt argued the state constitution didn't protect abortion rights because the procedure was generally illegal in the 1850s, when the state constitution was drafted. The Supreme Court decided 6-1 to affirm existence of a constitutional right to abortion in Kansas and remanded the case back to the district court for trial.
Sen. Eric Rucker, a Topeka Republican and chairman of the interim judiciary committee, raised the possibility the Supreme Court decision could imperil state law on late-term and partial-birth abortions, parental consent statutes and attempts to limit telemedicine abortions.
"It is not a very big legal leap to say that this case could open the door for an absolute right to assisted suicide, recreational marijuana, gender transition surgeries paid for by the government and a host of other things," said Brittany Jones, a lobbyist with the Family Policy Alliance of Kansas.