Kansas seeing a rise in out-of-state abortion patients. Can they be prosecuted elsewhere?

A legal battle nationally has kicked off on what many predict to be the next front in the national debate over abortion: whether states should be allowed to prosecute women who cross a border in search of an abortion or criminalize doctors in other states who provide the service.

Amid this debate, Kansas sits in a unique position.

The status quo is unlikely to change anytime soon in Kansas, owing to a 2019 state Supreme Court ruling that the state constitution protects abortion rights.

But the state is also unlikely to follow in the footsteps of more liberal legislatures and pass a law that shields state residents and physicians from prosecution or discipline for providing an abortion or helping individuals obtain one.

For the time being, such a scenario is largely theoretical. Idaho is the lone state in the country to attempt to criminalize helping or referring a person obtain an abortion out-of-state and even that law is relatively narrow in its focus.

Absent a rogue prosecutor, Kansas providers would still likely be at a low risk, said Greer Donley, associate professor of law at the University of Pittsburgh and an expert on abortion and the law.

But that doesn’t mean these questions won’t persist moving forward, she noted.

“The anti-abortion movement is kind of trying to figure out what to do next, right?” Donley said. “They all passed these bans. The bans are not as effective as they wanted them to be. And now the question is, well, what are they going to do? Are they going to start prosecuting women? Are they going to start going after providers in other states? And I don't think that there's been a real answer to that question yet.”

Can Kansas shield abortion patients, doctors from out-of-state sanction?

There is no evidence that a Kansas woman or doctor has been in legal hot water for providing an abortion to an out-of-state patient.

Indeed, statistics released by the Kansas Department of Health and Environment in June showed that more woman from Texas, Oklahoma and Missouri are coming to the state seeking abortion than ever before.

That’s due to the U.S. Supreme Court’s ruling last year overturning Roe v. Wade, ending protections under the U.S. Constitution for abortion rights and prompting states in the region to pass total or near-total abortion bans.

Whether those strict laws will ultimately apply to women who go out-of-state for an abortion, however, is likely to remain an open legal question.

In Alabama, abortion providers and a fund that helps individuals pay for the procedures sued the state last month in federal court. They pointed to remarks by state Attorney General Steve Marshall in 2022, indicating that individuals who help Alabama women cross state lines for the procedure could be prosecuted as criminal accomplices.

And a federal judge earlier this month blocked the implementation of the Idaho law, which penalizes doctors who refer their patients out-of-state for an abortion by taking away their medical license.

As a response, however, at least a dozen states have passed laws that shield doctors from punishment or prosecution for providing an abortion, limit cooperation from law enforcement agencies with an out-of-state investigation and block the review of sensitive medical records.

Other states have accomplished similar aims via executive order. Despite a conservative legislature in North Carolina, Democratic Gov. Roy Cooper signed an order last year preventing state agencies from assisting in out-of-state prosecutions and preventing patients from being extradited elsewhere.

Such a move is unlikely in Kansas, though Gov. Laura Kelly hasn't ruled it out.

"Governor Kelly has consistently defended a woman's right to keep private medical decisions between herself and her doctor," said Brianna Johnson, a spokesperson for the governor. "She will continue to consider any action that prevents government overreach into women's reproductive healthcare."

Can Kansas law enforcement share data on out-of-state abortion seekers?

Candice Breshears, a spokesperson for the Kansas Highway Patrol, said she was unaware of any written or verbal request for records from another state regarding a woman coming to Kansas to get an abortion.

The KHP, like scores of other law enforcement agencies across the state, maintains automatic readers that scan all license plate numbers that come into view, allowing the ability to track a vehicle's movement or establish that a car was in a certain location at a given time.

The data for KHP's readers is stored in a repository in Houston and can be shared only for a legitimate law enforcement reason or if another agency has access to the repository via a memorandum of understanding.

Attorney General Kris Kobach said that law enforcement would need to examine any request for information to ensure it conformed with the law, noting that protecting medical privacy was important.

Law enforcement agents would generally already have information indicating a person went out-of-state for an abortion before even coming to their Kansas counterparts, limiting what they might be seeking, he added.

"It seems unlikely that they would ask for a massive database or a huge amount of data from Kansas law enforcement," Kobach said. "But if that request were made, we'd have to be scrutinizing it very carefully to make sure that all state, federal and constitutional protections are in place."

Whether this type of situation could change in the future is unclear.

Missouri considered a measure in 2022 that would allow residents to sue out-of-state individuals who help a Missouri woman get an abortion, but it died abruptly on the state House floor in favor of another anti-abortion proposal. It wasn't considered during the 2023 session.

In Kansas, focus is likely to remain on other aspects, such as an ongoing legal challenge over the state's 24-hour waiting period and other requirements levied on abortion providers.

The state's largest anti-abortion group, Kansans for Life, said they typically don't weigh in on proposals in other states.

"Regarding Kansas law, we defend a woman’s right to know if an abortionist is a travelling practitioner on the abortion circuit and support proper accountability for any person who could potentially harm a woman or child," Danielle Underwood, a spokesperson for Kansans for Life, said in an email.

Nationally, the battle in the near future is likely to be over the constitutionality of these types of laws. Even if they are used, Donley noted that a priority for anti-abortion activists would likely be groups or providers that mail abortion pills to patients, rather than individual providers in a state like Kansas.

A federal appeals court dealt a blow earlier this month to the prescription of the abortion pill mifepristone via telemedicine and also limited the ability to mail the drug. The ruling won't take effect until the U.S. Supreme Court considers the case in its next term, which begins in the fall.

But earlier this year, a Texas man sued three women who he argued helped his now ex-wife obtain a medication abortion. He is unable to use a state statute targeting individuals who help a physician perform an abortion but instead is using portions of the Texas penal code to bolster his case.

"Does that mean that the providers in Kansas are completely risk-free? No," Donley said. "But in this new environment, you know, this post-Roe environment, there is no risk-free anything, right? Everything is just like a continuum of risk. And I think that the (Kansas) providers are doing something that's fairly low risk."

This article originally appeared on Topeka Capital-Journal: Kansas in unique spot amid laws on out-of-state abortion prosecutions