In Utah and Kansas, state courts flex power over new laws regulating abortion post-Roe

State courts in Utah and Kansas are set to hear arguments Tuesday in legal challenges to new laws on abortion as judges tussle with legislatures over how to regulate the medical procedure and its providers after the overturning of Roe v. Wade. Those and other state courts have become key venues in the fight over abortion since last year, when the U.S. Supreme Court reversed the constitutional right to abortion and made the rules governing it a matter of state laws.

In Utah, the state Supreme Court is expected to weigh a lower court’s decision to put a law banning most abortions on hold more than a year ago. And in Kansas, providers are asking a district court judge to block a new restriction on how they dispense abortion medications as well as older rules governing what doctors must tell patients and a required 24-hour wait between the first in-person consultation and the procedure.

In both states, the impact of the overturning of Roe remains unsettled as GOP-controlled legislatures push to tighten laws surrounding abortion and the doctors and clinics who provide them wage fierce court battles.

Utah is one of at least five states in which laws restricting abortion have been put on hold amid litigation. The state’s Planned Parenthood affiliate sued last year over a 2020 “trigger law” — passed by state lawmakers — that banned abortion with exceptions for maternal health threats or rape and incest reported to the police.

Since a judge put that law on hold last summer, another law — a 2019 ban on abortion after 18 weeks of pregnancy — took effect in Utah. Lawmakers subsequently passed additional legislation striking licensing provisions for abortion clinics from state code in an effort to phase them out and make it more difficult for courts to put laws on hold that sponsors described as a response to the trigger law.

While Judge Andrew Stone takes more time to weigh the merits of last year’s lawsuit from the Planned Parenthood Association of Utah, the state Supreme Court is expected to hear arguments about the extent of his court’s power to keep it on hold. If the law is allowed to take effect, Utah could join 15 states enforcing bans on abortion at all stages of pregnancy.

Judges have struck down only a few such bans in the year since Roe’s overturning, including in permanently blocking a ban in South Carolina on abortions after cardiac activity can be detected and, in Arizona, preventing the enforcement of a ban against doctors that pre-dated Roe v. Wade.

Like in Arizona, the June 2022 Supreme Court decision has put longstanding laws under new scrutiny. The waiting period and other requirements that Judge K. Christopher Jayaram will consider Tuesday in his courtroom in the Kansas City area have been in place for more than a quarter-century.

But Kansas has become an outlier on abortion among states with Republican-controlled Legislatures because of a 2019 decision by the state Supreme Court declaring access a matter of bodily autonomy and a “fundamental” right under the state constitution. Voters in 2022 decisively affirmed that abortion rights would remain protected — after anti-abortion groups warned that many of the state’s existing restrictions could fall.

The new law, which took effect July 1, requires providers to tell patients that a medication abortion can be stopped once it is started with a regimen that major medical groups call unproven and potentially dangerous. The state and the providers mutually agreed that the new law wouldn’t be enforced at least until the state court could decide the matter.

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