368 P.3d 667
Kan. Ct. App.2016Background
- In 2015 Kansas enacted the "Unborn Child Protection from Dismemberment Abortion Act" (S.B. 95) banning so-called "dismemberment" abortions (primarily D & E) of a living unborn child, with limited exceptions; statute would criminalize performance of D & E on a living fetus.
- Plaintiffs are two board-certified OB-GYNs and their practice who perform pre-viability second-trimester D & E abortions (up to ~21.6 weeks); they do not routinely induce fetal demise beforehand.
- The Shawnee County district court granted a temporary injunction preventing the law from taking effect, finding the Kansas Constitution Bill of Rights (Sections 1 and 2) protects an abortion right equivalent to federal due process and that the statute likely imposes an undue burden.
- On appeal the State argued (1) the Kansas Constitution does not independently protect abortion and (2) even if it did, the ban would not unduly burden abortion because alternatives (labor induction, digoxin or transection-induced fetal demise) exist.
- The Court of Appeals (en banc) affirmed the injunction by an equally divided court: seven judges voting to affirm (five joining the lead opinion and one concurring with a broader state-constitutional right analysis) and seven dissenting; tie affirms the lower court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Kansas Constitution (§§1 & 2) recognizes a right to abortion | §1 (liberty) and §2 are historically and textually read to afford the same substantive due process liberties as federal law; thus Kansas protects abortion rights | Kansas Constitution language and history do not establish an independent state-law abortion right; federal Fourteenth Amendment covers that field if at all | Held: Under controlling Kansas precedent §1 and §2 are treated as having much the same effect as federal Due Process/Equal Protection, so Kansas Constitution protects the same abortion right (lead opinion) |
| Standard of review for abortion restrictions under Kansas Constitution | Apply federal undue-burden test from Casey to determine if statute places substantial obstacle pre-viability | If Kansas has a right, the State argued alternatives make the law non-undue under Casey/Gonzales | Held: Apply Casey undue-burden test (court adopts federal standard as state standard) |
| Whether S.B. 95 unduly burdens pre-viability abortion by banning D & E without viable alternatives | Banning D & E (the most common second-trimester method) while already banning intact D & E leaves only uncommon/risksome alternatives (labor induction, digoxin, transection) and thus places a substantial obstacle | The State: reasonable alternatives exist (labor-induction, digoxin, transection) and Gonzales supports upholding method bans when other options remain | Held: On the record before the district court plaintiffs showed a substantial likelihood of success that the ban would impose an undue burden (court relied on Stenberg/Gonzales distinctions) |
| Appropriateness of temporary injunction pending full trial | Plaintiffs satisfied preliminary-injunction factors (likelihood of success, irreparable harm, balance of harms, etc.) | State did not meaningfully dispute the district court's factual findings or other injunction factors on appeal | Held: Temporary injunction properly entered (district court order affirmed by tie) |
Key Cases Cited
- Roe v. Wade, 410 U.S. 113 (U.S. 1973) (federal right to abortion grounded in Fourteenth Amendment liberty)
- Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (U.S. 1992) (announces undue-burden standard for abortion regulations)
- Stenberg v. Carhart, 530 U.S. 914 (U.S. 2000) (invalidates statute banning D & E when it also banned intact D & E and lacked health exception)
- Gonzales v. Carhart, 550 U.S. 124 (U.S. 2007) (upholds federal ban on intact D & E where ordinary D & E remained legal)
- State v. Limon, 280 Kan. 275 (Kan. 2005) (Kansas Supreme Court treats §§1 & 2 as having much the same effect as federal Due Process/Equal Protection)
- Alpha Medical Clinic v. Anderson, 280 Kan. 903 (Kan. 2006) (Kansas Supreme Court applied federal undue-burden standard in abortion context and declined to decide independent state-right)
- Brick Co. v. Perry, 69 Kan. 297 (Kan. 1904) (early Kansas case recognizing substantive-due-process principles under state constitution)
- Manzanares v. Bell, 214 Kan. 589 (Kan. 1974) (applies due-process analysis under Kansas Constitution to economic regulation)
- State v. Wilson, 101 Kan. 789 (Kan. 1917) (historic recognition that §§1 & 2 correspond to federal due process/equal protection)