While Wednesday’s full court hearing of the Kansas Court of Appeals was characterized by one of the 14 judges as “merely a whistle stop on the destination to justice,” it would be a mistake to underestimate the significance of the 90-minute hearing.
At issue is Attorney General Derek Schmidt’s appeal of a temporary injunction granted June 25 by a state court which blocked Senate Bill 95, the “Unborn Child Protection from Dismemberment Abortion Act,” from going into effect.
The lawsuit was filed by father-daughter abortionists at the Center for Women’s Health, Herb Hodes and Traci Nauser, who attended the hearing along with a raft of attorneys, reporters, representatives of the other two Kansas abortion businesses, and members of Kansans for Life. Court staff had added extra chairs and a “cheat” sheet with the judges’ photos and names. No electronic devices are allowed, so notes had to be taken with old fashioned paper and pen.
This hearing was focused on the process of awarding an injunction, and not the content of the law enjoined. So it was not too surprising that not one word was uttered describing the horrific abortion dismemberment method that uses sharp metal clamps and scissors to tear apart, piece by piece, a well-formed, living unborn child.
Rather, the focus of the oral argument (45 minutes each, pro and con) was on pretty heavy-duty legal language–for example, how federal “substantive due process” and “equal protection” (upon which Roe is based) are interpreted in state constitutions.
In simpler terms, will this court uphold the injunction by Shawnee County Judge Larry Hendricks that blocked the dismemberment ban from going into effect?
The Attorney General’s appeal alleges the injunction cannot hold because it is based on
- a hitherto-undeclared “right to abortion” under the Bill of Rights section of the Kansas Constitution; and
- misinterpretations of federal abortion decisions.
The pro-life side was represented by State Solicitor General, Steve McAllister– an experienced litigator, constitutional scholar, past law school dean, and former clerk to two U.S. Supreme Court justices.
The attorney for the plaintiffs seeking to keep dismemberment abortions legal was Janet Crepps, from the New-York-based Center for Reproductive Rights. Crepps is an experienced pro-abortion litigator, but she struggled to answer judges’ questions regarding Kansas law.
KANSAS CONSTITUTION PROTECTS UNBORN
The arguments Wednesday dealt nearly exclusively with the Kansas Constitution, and not the federal abortion rulings related to partial-birth and dismemberment abortion methods. McAllister strongly asserted that this court’s task was to assess prior Kansas rulings and not try to guess which way the Kansas Supreme Court might rule on this case in the future –as it is expected they surely will do at some point.
He presented strong evidence that the state framers particularly sought to protect natural rights, not un-enumerated, newly-evolved “rights.”
This stood in opposition to Judge Hendricks’ ruling which asserts a state abortion right that is “fundamental,” broader than that of Roe, and which bars any ban on the dismemberment method.
McAllister noted that abortion was illegal at the 1859 adoption of the state constitution, so how can any authentic reading of it re-interpret abortion to be protected? Moreover, abortion was criminally prosecuted in Kansas up until Roe. Kansas case law, he argued, has interpreted the state constitution as specifically protective of the unborn child.
As a comparison, McAllister pointed out that doctors had filed—and lost—a lawsuit to find a “right” to practice medicine within the Kansas Constitution, so it seems absurd for abortionists to assert there’s a “right” to abortion found there!
WEAK LEGAL CLAIMS
Several judges pushed Crepps to defend why her clients were seeking to have Kansas courts secure a state right to abortion. Since the intended purpose of a temporary injunction is to prevent “harms” during litigation, they asked how was she really helping her clients by not using the federal court system where Roe already supports abortion claims?
Crepps’ reply was that every citizen has the right to ask the courts to find such individual protection under their state constitution. She noted that interracial marriage and gay rights were not originally acknowledged as rights.
At one point, Crepps was asked to elucidate specifically what was the “undue burden” involved from the Act: was it safety? cost? geographic access?
Crepps responded that the banned method took only one day to complete instead of three and that the Act left only “unreasonable alternatives” for women seeking second-trimester abortions. Throughout the hearing she repeatedly described one alternative method as requiring the insertion of a “spinal, 18-gauge needle into the stomach or vagina” to “cause demise.”
She didn’t say “fetal demise.” Just demise. Did the judges notice she left out the unborn child?
The chief Judge of the appellate court, Thomas Malone, promised a quick ruling but was unable to say when that would occur.