Kansas Court of Appeals upholds injunction against 2015 abortion law

TOPEKA – An equally divided Kansas Court of Appeals issued its decision today in the appeal from a temporary injunction granted by a Shawnee County district judge barring the enforcement of a law passed by the 2015 Kansas Legislature that places restrictions on a procedure commonly used in second-term abortions.

In the abortion law challenge, plaintiffs Herbert C. Hodes, M.D., and Traci Lynn Nauser, M.D., sought to prevent the new law from taking effect July 1, 2015.

In granting the temporary injunction, the district court ruled, for the first time in a Kansas court, that the Kansas Constitution provides a right to an abortion independent of the right found in the United States Constitution. The district court also ruled that the plaintiffs established a substantial likelihood of success on their claim that the new law violates their patients’ right to abortion protected by the Kansas Constitution.

The Court of Appeals heard the case en banc, meaning that all 14 judges on the court participated in deciding the appeal. In today’s ruling, the equally divided appellate court upheld the district court’s temporary injunction.

In an opinion authored by Judge Steve Leben, six judges agreed with the district court that the Kansas Constitution provides the same protection for abortion rights as the United States Constitution. These judges also found there is a substantial likelihood that the new Kansas law is unconstitutional, so the district court properly granted the temporary injunction. In a concurring opinion, Judge G. Gordon Atcheson also agreed that the district court’s temporary injunction should be upheld.

In an opinion authored by Chief Judge Thomas E. Malone, seven judges would find that the Kansas Constitution does not provide an independent state-law right to an abortion. These judges would set aside the temporary injunction granted by the district court.

Information from the Kansas Office of Judicial Administration.

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