After vote, Kansas Supreme Court stands by abortion decision. What it means for two laws.

The Kansas Supreme Court is standing by its landmark 2019 abortion ruling that the Kansas Constitution protects the right to an abortion.

The high court on Friday rejected arguments from attorneys for Attorney General Kris Kobach who argued the decision should be overturned, even after voters overwhelmingly rejected a proposed constitutional amendment to undo the decision.

“The decision is as disappointing as it is unsurprising. The Kansas Constitution means what the people of Kansas thought the words meant when they voted to ratify those words," Kobach said. "When the word liberty was included in the constitution, no one in Kansas thought they were creating a right to an abortion.”

In addition to upholding the previous decision, the Supreme Court's two rulings permanently block the state from enforcing two abortion laws passed several years ago that have never been in effect.

Justices Eric Rosen and Melissa Taylor Standridge wrote the majority opinions. Justice Caleb Stegall dissented in both cases.

"We stand by our conclusion that section 1 of the Kansas Constitution Bill of Rights protects a fundamental right to personal autonomy, which includes a pregnant person's right to terminate a pregnancy," Rosen wrote in one case. "The State must show any infringement of that right withstands strict scrutiny."

Attorney general had argued for overturning abortion rights decision

In 2019, the Kansas Supreme Court's majority ruled that the state constitution's bill of rights protects the right to an abortion. The 6-1 decision found that the protection of "inalienable natural rights" extends to personal autonomy, which includes decisions on whether to continue a pregnancy.

The ruling makes it more difficult for lawmakers to enact and defend laws restriction abortion.

Anti-abortion lawmakers and lobbyists then pushed the so-called Value Them Both Amendment, which was put on the Aug. 2, 2022, primary election ballot. That proposed constitutional amendment would have stripped the right to an abortion from the constitution, effectively undoing the court's ruling and allowing lawmakers to further regulate or potentially ban abortion.

In oral arguments last year, solicitor general Anthony Powell argued the vote should be disregarded, saying "I'm not sure we can really say" whether voters were affirming the high court's abortion rulings when they went to the polls in August.

"As a matter of law, constitutional interpretation, the public vote doesn't matter, particularly when the constitution doesn't change," Powell said.

But Rosen wrote that the court "declined the invitation" to reverse the earlier ruling. He said Kobach's office was wanting to relitigate the same questions the court addressed in 2019, and while the state "ardently argues our earlier decision was flat-out wrong," they failed to show the prior decision was "clearly erroneous."

"It is noteworthy that the majority cannot bring itself to acknowledge the government's compelling interest in unborn human life," Stegall wrote in his dissent. He characterized the majority's view on protecting unborn life to mean, "We don't want to tie our hands with such inconveniences."

More: What did Kansas voters mean when they rejected anti-abortion amendment? Lawmakers disagree

Kansas Supreme Court permanently blocks two abortion laws

Friday's ruling permanently blocks two laws passed by the Kansas Legislature several years ago.

One case involves Senate Bill 95 from 2015. That law banned an abortion procedure known as dilation and evacuation, a common second-trimester procedure..

The other case involves Senate Bill 36 from 2011, as well as a 2015 amendment to it. That law created new licensing requirements targeting abortion clinics.

"The State failed to meet its evidentiary burden to show the Challenged Laws further its identified compelling interest in protecting maternal health and regulating the medical profession as it relates to maternal health," Standridge wrote of the clinic licensure.

Both laws had been temporarily blocked as the legal proceedings continued before abortion providers eventually won permanent injunctions in Shawnee County District Court. Friday's rulings came on appeals to those decisions, after the Supreme Court held oral arguments in March 2023.

Decision shows impact of Value Them Both

Reproductive rights advocates said the decision is in line with the beliefs of Kansans after the failed Value Them Both campaign in 2022.

Nancy Northup, the CEO of the Center for Reproductive Rights, called it "an immense victory" for the health, safety and dignity of people in the Midwest where some states have restricted or banned abortion. The center's attorneys were the lead attorneys on the case.

"Kansas voters made it loud and clear in 2022: the right to abortion must be protected," Northrup said. "Now the Kansas Supreme Court has decisively reaffirmed that the state constitution protects abortion as a fundamental right."

But Kansans for Life, the state's most prominent anti-abortion group, said the decision contrasts with messaging during the Value Them Both campaign that promised abortion would remain heavily regulated without amending the constitution. They said the decision by "extremely liberal judges" overturned basic health and safety standards.

"It hurts to say, 'We told you so,' to the many Kansans who were misled by the abortion industry's assurances that it would still be 'heavily regulated' in our state if voters rejected the 2022 amendment," said Danielle Underwood, a Kansans for Life spokesperson.

While Kansans for Life characterized the decision as politicized by liberal judges, Planned Parenthood Great Plains' statement has the opposite perspective. It praised the Kansas Supreme Court while casting doubt on other decisions across the country.

"In an era when other courts are captured by ideology and high-dollar influence, the Kansas Supreme Court continues to evaluate evidence, follow precedent, and uphold fundamental rights,” said Emily Wales, president and CEO of Comprehensive Health of Planned Parenthood Great Plains.

Kansas has seen spike in abortions since 2022

The number of abortions performed in Kansas has risen since 2022 after voters chose to keep abortion rights protections in the state constitution.

Supporters of Value Them Both said Kansas would be a destination for abortion without the amendment. Meanwhile, abortion providers have opened additional clinics in the state.

Statistics from 2022 showed the increase was largely due to out-of-state patients from states that heavily restricted or banned the procedure after the U.S. Supreme Court overturned Roe v. Wade.

Abortion rights supporters have estimated a 67% increase in abortions in Kansas in 2023, but the state hasn't released official numbers. In breaking with 24 years of tradition, the Kansas Department of Health and Environment decided not to release a preliminary report, and the agency has refused to give a reason for the change.

This article originally appeared on Topeka Capital-Journal: Kansas Supreme Court upheld 2019 abortion rights decision, blocks laws