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Kansas Supreme Court refuses for now to review lawsuit against nation's 1st ban on procedure

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TOPEKA, Kansas — The Kansas Supreme Court is refusing for now to review a district court judge's order blocking the nation's first ban on a common second trimester procedure, despite requests from both sides.

The high court's 4-3 decision this week means the state Court of Appeals first will handle a lawsuit filed by two abortion providers against a statute that was supposed to take effect in July. The Court of Appeals set an expedited schedule for the case Wednesday.

The Supreme Court sometimes takes high-profile cases from the Court of Appeals to speed up their final resolution when they seemed destined to end up before the high court on appeal anyway.

Attorney General Derek Schmidt, a defendant in the lawsuit, issued a statement saying that he appreciated the lower appellate court's schedule, requiring written legal arguments to be filed by mid-November.

"We will defend this duly enacted state law in front of whatever court wants to hear it," Schmidt said.

Janet Crepps, a senior attorney for the New York-based Center for Reproductive Rights, said it had hoped the Supreme Court would take the case but ultimately believes both courts will find the law unconstitutional. The center represents father-daughter Drs. Herbert Hodes and Traci Nauser, who perform abortions at an Overland Park clinic and filed the lawsuit.

"As long as women in Kansas are protected in the meantime, we're happy to let the process take its natural course," Crepps said.

The high court's two-paragraph order Monday did not explain the reasons for its decision.

The order said Justices Carol Beier, Eric Rosen and Caleb Stegall dissented. Beier and Rosen were appointed by former Democratic Gov. Kathleen Sebelius, an abortion rights supporter, while Stegall was appointed by Republican Gov. Sam Brownback, an abortion opponent.

The law on hold embodies model legislation from the National Right to Life Committee and bans what critics call "dismemberment abortion." It prohibits doctors from using forceps, clamps, scissors or similar instruments on a living fetus to remove it from the womb in pieces.

Such instruments are used in dilation and evacuation procedures, described by abortion rights supporters as the nation's most common second trimester procedure. Shawnee County District Judge Larry Hendricks temporarily blocked the law in late June.

Hendricks said Hodes and Nauser are likely to prevail in their arguments that the law represents too big an obstacle for women seeking abortions. Hendricks also declared that the Kansas Constitution protects abortion rights at least as much as the U.S. Constitution does — a finding the state's appellate courts have not previously made.


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