Judge blocks Kansas abortion restrictions, demonstrating 2022 vote’s enduring effect

A Kansas judge blocked a series of abortion restrictions on Monday, a decision further elevating the state’s standing as a crucial regional access point for individuals seeking to end their pregnancies.

Johnson County District Court Judge Christopher Jayaram issued a temporary injunction stopping officials from enforcing a 24-hour waiting period for abortions. He also halted enforcement of rules mandating abortion providers, without evidence, post information in clinics and online warning abortions can increase risk of breast cancer and premature birth in future pregnancies.

The injunction puts decades of anti-abortion policies enacted by the Republican-controlled Legislature at risk of unraveling after voters last year overwhelmingly rejected a state constitutional amendment that would have empowered legislators to ban the procedure.

Since the U.S. Supreme Court overturned the federal right to an abortion in 2022, Kansas has emerged as a bulwark of access amid a national patchwork of state bans and restrictions. Several nearby states – including Missouri, Oklahoma and Arkansas – ban the procedure. The number of abortions performed in Kansas grew by 57% last year, driven entirely by an increase in out-of-state patients.

Jayaram’s order comes in a lawsuit brought by abortion providers challenging several Kansas restrictions. The case is an early test of the limits of a landmark 2019 Kansas Supreme Court decision that upheld the right to abortion by finding the state constitution protects the right to bodily autonomy.

Under the state Supreme Court decision, restrictions on abortion must clear an extremely high bar, backed by evidence that they are narrowly tailored to serve a compelling state interest.

“Because a woman’s right to bodily autonomy (including her right to decide whether to terminate or continue a pregnancy) is fundamental, the Court concludes, for purposes of this request for temporary relief, that the State’s rationale and schemes simply do not survive constitutional review” under the Kansas Constitution, Jayaram wrote in his opinion.

Plaintiffs are likely to succeed on the merits in their lawsuit, Jayaram found, entitling them to a temporary injunction. A trial in the underlying case is scheduled to begin in June of 2024.

Portions of the law were first enacted in 1997. Lawmakers have amended the law several times since, most recently adding a policy this year requiring providers to tell patients a medication abortion may be reversible, though the science is unproven.

The challenged law requires physicians to listen to the fetus’ heartbeat 30 minutes prior to an abortion. The policy requires providers to, without evidence, post information in their clinics and websites that abortions could increase their risk of breast cancer and premature birth in future pregnancies.

Clinics must also provide information about pregnancy resources and fetal development. A packet of information must be provided 24 hours before an abortion in specific fonts and colors.

“A mandatory and non-waivable waiting period of 24 hours has, in many instances, substantially limited (and will likely continue to substantially limit in the future) plaintiffs’ patients’ ability to effectively obtain the medical procedure they desire,” Jayaram wrote in his 92-page ruling.

Abortion rights supporters immediately hailed the decision.

“Each day these restrictions were in effect, we have been forced to turn away patients for reasons that are medically wrong and ethically unjustifiable,” Emily Wales, president and CEO of Planned Parenthood Great Plains, said in a statement.

“Today’s ruling is a crucial step in achieving what Kansans emphatically supported in August 2022: abortion access without political interference,” Wales said. “No patient should be denied care because they printed a form in the wrong color, but that is precisely what these laws have mandated us to do.

Kansas Attorney General Kris Kobach, a Republican whose office is defending the restrictions in court, didn’t immediately comment.

Alliance Defending Freedom, which pursues lawsuits on behalf of social conservative causes and is assisting Kobach, in a statement said Kansas women had been empowered for decades to make fully informed decisions about ending a pregnancy.

“These kinds of informed consent laws reflect the long-standing will of the people of Kansas, but Planned Parenthood challenged the law because it impacted their bottom line. Planned Parenthood has made it clear that its goal is to withhold information from women, bypass ultrasounds, and refuse to meet with women before an abortion,” Alliance Defending Freedom spokesperson Bernadette Tasy said in a statement.

The blocking of the 24-hour waiting period could prove especially consequential, making it easier for out-of-state residents to travel to Kansas for an abortion without the need to stay multiple days.

In 2022 in Kansas, 12,318 abortions were performed, according to a preliminary report released by the Kansas Department of Health and Environment in June, up from 7,849 in 2021 — an increase of 57%. The growth occurred entirely in abortions among out-of-state residents, which grew by 4,563.

Kansas residents, on the other hand, obtained fewer abortions in 2022 than the year before. The number of Kansas residents receiving abortions dropped by 94 to 3,843.

“This ruling represents a hard-fought win for our patients all across Kansas and in neighboring states where abortion is banned,” Traci Lynn Nauser, a physician who is one of the plaintiffs in the lawsuit, said in a statement.

The 2019 Kansas Supreme Court decision, the U.S. Supreme Court’s overturning of Roe v. Wade and the Kansas vote to affirm abortion rights have all put abortion opponents on the defensive in the state after decades of incremental gains through restrictions approved by Republican state lawmakers.

Kansans for Life, the state’s leading anti-abortion group, cast Jayaram’s decision as a “nightmare” for women. In a statement, the group repeatedly described the blocked restrictions as safeguards on abortion.

“Women will pay the price for the deceitful practices of the abortion industry that consistently puts its own profits above all else,” KFL spokeswoman Danielle Underwood said.

Even as Jayaram dealt a severe setback to abortion opponents, he acknowledged the depth of conviction and belief on both sides of the issue. He wrote that the start of life have been debated for decades, if not longer, and that he wouldn’t wade into the divide in order to rule on a temporary injunction.

“The Court has great respect for the deeply held beliefs on either side of this contentious issue,” Jayaram wrote. “Nevertheless, the State’s capacity to legislate pursuant to its own moral scruples is necessarily curbed by the Kansas Constitution and its Bill of Rights.”

The Star’s Katie Bernard contributed reporting