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Abortion ‘dismemberment’ ban set for unusual court hearing

Posted on December 8, 2015

(This originall appeared in The Washington Times)

A first-in-the-nation Kansas abortion law is scheduled to go before all 14 state appellate judges Wednesday — an unusual step that reflects the gravity of the lawsuit, the state says.

The Unborn Child Protection from Dismemberment Abortion Act was enacted in Kansas in April. It prohibits, in most cases, use of a certain abortion method — dilation and evacuation, or D&E — that is commonly used between 12 and 22 weeks gestation.

In a D&E, abortion doctors use specific instruments to slice, crush and pull apart a living fetus so that it can be extracted from the woman’s womb.

Lawmakers took action against the “brutal” D&E procedure, saying the U.S. Supreme Court’s 2007 Gonzales v. Carhart ruling says states have a legitimate interest in regulating the medical profession to promote respect for life, including the life of the unborn.

The Kansas dismemberment law has several exemptions: It does not affect abortions that are performed only with suction, cases in which cutting tools are needed to remove a dead fetus from the womb or cases in which continuing the pregnancy could severely injure or kill the pregnant woman.

Dr. Herbert Hodes and his daughter, Dr. Traci Nauser, who both perform abortions at their health center in Overland Park, Kansas, sued to block the law. They are represented by the Center for Reproductive Rights.

In July, Shawnee County District Judge Larry Hendricks agreed with the abortion doctors, and blocked the new law from going into effect.

Judge Hendricks also ruled that the dismemberment law improperly restricted women’s access to abortion, and the Kansas Constitution protects abortion rights at least as much as the U.S. Constitution. The latter conclusion was a first-ever finding that, if upheld, could jeopardize other state abortion restrictions, The Associated Press reported.

Kansas Attorney General Derek Schmidt, who is defending the law, has told reporters that the case has “significant constitutional gravity.”

Having the full Court of Appeals hear the case speeds the case to the seven-member Kansas Supreme Court. Court spokeswoman Lisa Taylor told the AP that judicial branch officials believe Wednesday’s hearing will be the first time since August 1989 that all the appellate judges will hear a case.

Janet Crepps, a senior attorney for the Center for Reproductive Rights, said that the appellate court’s decision for a full hearing shows that it “recognizes that this is an important question of first impression.”

Kathy Ostrowski, legislative director for Kansans for Life, said she believes Judge Hendricks made a “fundamental error” by presuming the law was invalid.

The court has also “invented a state right to abortion” that needs to be rectified, she said in an article in National Right to Life News Today.

Kansas lawmakers used model legislation offered by the National Right to Life Committee (NRLC) to write their dismemberment abortion ban.

Outlawing most “dismemberment” abortions should “transform the landscape of abortion policy,” NRLC said. As many as 100,000 unborn children may have been subjected to a “dismemberment” abortion in 2011, Kansans for Life said.

Soon after Kansas leaders enacted their dismemberment ban, Oklahoma officials enacted similar legislation. It too was challenged in court, and has been blocked by a state judge.