Kansas Judge Weighs Nation’s 1st Ban on Abortion Method

June 25, 2015 Updated: June 25, 2015

TOPEKA, Kan.—An abortion rights group will ask a Kansas judge Thursday to block the state’s first-in-the-nation ban on what it says is the most common method for terminating second-trimester pregnancies, contending that the new law would force some women to either accept higher medical risks or forgo abortions.

But the state’s lawyers were expected to argue in Shawnee County District Court that abortion providers have safe alternatives to the procedure, which anti-abortion activists describe as dismembering a fetus.

District Judge Larry Hendricks’ hearing in a lawsuit filed by the Center for Reproductive Rights comes just six days before the ban takes effect, and the group is asking him to block it at least until its lawsuit is heard.

The National Right to Life Committee drafted the ban as model legislation for states. Kansas was the first to enact it, though Oklahoma followed with a statute set to take effect in November. The center’s lawsuit said the ban applies to a procedure used in 95 percent of second trimester abortions nationally.

“It’s among the most extreme restrictions that we’ve seen,” said Janet Crepps, a senior counsel for the Center for Reproductive Rights. “It’s a ban on the most common method in the second trimester.”

The center represents father-daughter Drs. Herbert Hodes and Traci Nauser, who perform abortions at a health center in the Kansas City suburb of Overland Park.

Attorney General Derek Schmidt’s office declined to comment ahead of the hearing, but in a court filing last week, attorneys for the state denied that the law blocks access to safe abortions.

“Instead, it simply declares one particularly gruesome and medically unnecessary method of abortion to be beyond society’s tolerance level,” they wrote.

The new law would ban doctors from using forceps, clamps, scissors or similar instruments on a live fetus to remove it from the womb in pieces. Such instruments are commonly used in dilation and evacuation procedures in the second trimester, and the law designates the banned method as “dismemberment abortion.”

Dilation and evacuation procedures accounted for about 9 percent of all abortions in Kansas last year, according to the state health department. The state already bans most abortions at or after the 22nd week of pregnancy, and 89 percent last year occurred before the 13th week.

The new law makes exceptions to the ban for preserving a woman’s life or preventing serious and permanent damage to her physical health. It also doesn’t apply if doctors ensure that the fetus dies before using instruments to remove it from the womb.

The state’s lawyers argued that doctors could avoid violating the ban and still perform safe abortions by first giving the fetus a lethal injection or by severing its umbilical cord in the womb. They argued that Hodes and Nauser just “personally prefer to perform dismemberment abortions.”

But the lawsuit said there have been few studies of the safety of the alternative methods and that lethal injections for the fetus could increase of nausea, vomiting and infection in women.

The lawsuit contends the law violates the Kansas Constitution by “infringing upon their rights to bodily integrity” and equal legal protection. But lawyers for the state also noted that Kansas courts haven’t previously said the state constitution protects abortion rights independently of the U.S. Constitution.