Appeals Court Rules Against Kansas Unborn Child Protection from Dismemberment Act

By The Stream Published on January 22, 2016

They say “the tie goes to the runner”? Today, the tie did not go to the unborn.

On the very anniversary of Roe v. Wade the Kansas Court of Appeals ruled against a 2015 state law that banned a common and brutal second-trimester abortion procedure. The 7-7 tie vote means a lower court’s ruling throwing out the pro-life law stands for now, setting up a likely battle at the Kansas Supreme Court over the law.

The “Kansas Unborn Child Protection from Dismemberment Act” was the first-in-the-nation ban on doctors using forceps or similar instruments on a live fetus to remove the baby from the womb in pieces. Such instruments are commonly used in dilation and evacuation procedures, which the Center for Reproductive Rights argued is the “safest” and most common second trimester abortion procedure in the U.S.

The Center filed suit against the state on behalf of father-daughter abortionists Drs. Herbert Hodes and Traci Nauser, arguing the law would force women to forgo abortions or choose riskier procedures. Last summer, a lower court judge blocked the law from taking effect, ruling it placed too large a burden on women seeking an abortion. He also said the right to abortion is protected by the Kansas Constitution.

In their appeal, lawyers for the state called the ruling “stunning,” saying that no court had ever recognized a right to an abortion under the Kansas Constitution. Further, the U.S. Supreme Court has said that a state may prohibit a particular abortion procedure when reasonable alternatives are available. “Here, the Kansas Legislature prohibited only one method of performing a common second-term abortion procedure, while a number of safe alternative methods remain available.”

However, in Friday’s ruling, the Appeals Court declared the Kansas Constitution protects abortion rights independent of the U.S. Constitution. The decision has implications beyond this particular case. Abortion advocates could use the ruling to dismantle other abortion restrictions in Kansas that the federal courts would allow.

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