Associated Press - Supreme Court Ruling on Partial-Birth Abortion Brings Out State's Role in Abortion Issue

April 23, 2007
By John Hanna, AP Political Writer

TOPEKA -- For all the hullabaloo surrounding the U.S. Supreme Court's decision on abortion last week, it's not destined to have any practical effect in Kansas in the short-term.

The court upheld a federal law banning what abortion opponents call the ''partial-birth'' procedure for terminating a late-term pregnancy. Several hundred late-term abortions are performed each year in Kansas, and a majority of them on viable fetuses. But attorneys for Dr. George Tiller, among the few U.S. doctors performing them, say he isn't using the banned procedure.

But both sides in the abortion debate said the court's ruling suggested the majority's willingness to uphold other limitations on abortion, and both predicted the decision would encourage anti-abortion groups to seek new restrictions.

At least until Gov. Kathleen Sebelius leaves office in January 2011, the state's laws on abortion aren't likely to get significantly more restrictive. And as long as Attorney General Paul Morrison is in office, abortion opponents expect to be disappointed in the state's oversight of abortion providers.

While the nation's highest court showed its ability to shape abortion policy, its ruling also points to the key role that governors, state attorneys general and state legislators can -- and do -- play.

''Those elected officials are absolutely critical,'' said Julie Burkhart, a lobbyist for ProKanDo, an abortion rights group with ties to Tiller.

The Supreme Court's historic 1973 decision, Roe v. Wade, legalized some abortions across the nation. But the justices have allowed restrictions, and patients have found their access to abortion determined by how many doctors, hospitals and clinics are willing to perform them.

Abortion opponents found the court's most recent ruling significant for several reasons, including a statement Justice Anthony Kennedy included in the majority opinion, that ''the government has a legitimate and substantial interest in preserving and promoting fetal life.''

''The government may use its voice and its regulatory authority to show its profound respect for the life within the woman,'' Kennedy wrote.

Abortion rights supporters have worried that President Bush's appointees, Chief Justice John Roberts and Samuel Alito, would push the court to the right, and last week's ruling confirmed their fears.

Meanwhile, abortion opponents like Jay Sekulow, chief counsel of the American Center for Law and Justice, also believe the decision will become part of an ongoing trend.

''I think it represents a monumental shift in abortion jurisprudence,'' Sekulow said in an interview.

There's still concern -- or hope, depending on a person's views on abortion -- about the federal government's role. The most obvious reason is the president's ability to nominate Supreme Court justices and the Senate's power to block the appointments.

It's also possible Congress could enact nationwide abortion policy, said Ralph Neas, president of People for the American Way, which supports abortion rights.

''If Roe v. Wade was overturned, there's nothing to prevent Congress from enacting legislation to prohibit abortions,'' Neas said.

But others see states as the most likely venue for disputes about abortion, as they were before the Roe v. Wade decision. Sekulow said the court's decision was ''a clear signal that this issue is returning to the states.''

A 1998 Kansas law permits an abortion after the 21st week of pregnancy and when a fetus is viable to save a woman's life or prevent ''substantial and irreversible'' harm to a ''major bodily function.''

The statute doesn't say abortions are allowed to preserve a woman's mental health, but both Bill Graves and Carla Stovall, the governor and attorney general when it was passed, argued it had to be assumed for the law to be constitutional.

Even Phill Kline, the anti-abortion Republican who succeeded Stovall as attorney general in 2003, didn't challenge that principle in filing 30 misdemeanor criminal charges against Tiller in December, accusing the doctor of performing illegal late-term abortions. Tiller's attorney said the charges had no merit, and a Sedgwick County judge dismissed them for jurisdictional reasons.

Tiller is among the few U.S. doctors performing late-term abortions, a fact that attracts patients from other states. Kansans accounted for fewer than 3 percent of the more than 2,700 abortions of viable fetuses in the state in the past nine years.

Morrison has said he'll decide soon whether to prosecute Tiller based on evidence Kline gathered, but abortion opponents are skeptical.

Working to get officials to enforce existing laws on abortion rigorously is ''the new frontier'' in the debate, said Mary Kay Culp, executive director of Kansans for Life, the state's largest anti-abortion group.

''If this does come down to the states, it's left to the attorneys general to enforce the law,'' she said.

Meanwhile, attempts by Kansans for Life and other abortion opponents to make Kansas law more restrictive have foundered because Sebelius has vetoed clinic regulation and abortion reporting measures.

That's why it mattered to both sides in the abortion debate that Sebelius was elected governor in 2002 over anti-abortion Republican Tim Shallenburger and that Morrison ousted Kline from the attorney general's office last year.

And that's why it matters to them who's elected to the Legislature in 2008 and 2010, and who wins the governor's and attorney general's races in 2010.