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Kansas House Speaker Ray Merrick, right, a Stilwell Republican, watches the chamber's electronic tally board as it approves a sweeping anti-abortion bill, Friday, April 5, 2013, at the Statehouse, in Topeka, Kan. To Merrick's left is Majority Leader Jene Vickrey, a Louisburg Republican. (AP Photo/John Hanna)
Kansas legislature passes anti-abortion bill; ‘at fertilization’ declaration gives some pause
First Published Apr 06 2013 10:57 am • Last Updated Apr 06 2013 10:59 am

Topeka, Kan. • A phrase declaring that life begins "at fertilization" tucked into new abortion legislation in Kansas is creating concern among abortion rights advocates that the wording will inspire new attempts to prevent the procedure.

Supporters of the measure said the language is no more than a statement of principle — similar to those found in several states, including neighboring Missouri — rather than an attempt to prevent any pregnancies from being terminated. But advocates on both sides of the issue acknowledge the wording could prove helpful to abortion opponents over time.

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The bill, sent late Friday to Gov. Sam Brownback, would block potential tax breaks for abortion providers and ban them from furnishing materials or instructors for public school sex education classes. It also outlaws sex-selection abortions and spells out in greater detail what information doctors must provide to women before an abortion.

The measure’s provision declaring that life begins at fertilization says that "unborn children have interests in life, health and well-being that should be protected" and that their parents also have "protectable interests" in their children’s well-being. A similar idea is embodied in "personhood" measures in other states, which are aimed at revising their constitutions to ban abortion; none have been enacted, though the question will be put to North Dakota voters in 2014.

However, Kansas lawmakers aren’t trying to change the state constitution to ban abortions, and the provision notes that any rights suggested by the language are limited by decisions of the U.S. Supreme Court. Should Brownback — a Republican and a strong abortion opponent — signs the bill as expected, Kansas would become the 14th state to have such language in its laws, according to the National Right to Life Committee.

Many anti-abortion legislators see ‘at fertilization’ statements as symbolic. But it could underpin lawsuits by prospective parents or grandparents who want to block abortions or be cited by abortion opponents in pushing law enforcement officials to scrutinize clinics, said Troy Newman, president of the anti-abortion group Operation Rescue.

"For me, this is just delightful," Newman said. "It opens up so many avenues."

Kansas isn’t the only state to seek new abortion restrictions during this year’s legislative sessions. Last month, Arkansas banned most abortions after the 12th week of pregnancy, and a couple weeks later, North Dakota’s governor signed into a law a measure that prohibits abortions as early as the sixth week.

Abortion rights advocates said Kansas’ new restrictions won’t be as severe as those states, but they also don’t trust assertions from abortion opponents that the language on when life begins represents only a statement of principles.

"Could it be used as a tool of harassment? Absolutely," said Holly Weatherford, lobbyist and program director for the American Civil Liberties Union of Kansas and Western Missouri.


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But so far, similar language in other states — including Illinois, Nebraska, Ohio and Pennsylvania — has failed to trigger high-profile court challenges, experts say.

A preamble to Missouri’s abortion restrictions that states that life begins at conception has been in place since 1986 and has been upheld by the U.S. Supreme Court, which said states can "make a value judgment favoring childbirth over abortion." The only notable effect in Missouri came in 2010, when a law required that women wanting an abortion must be given a brochure that includes a statement taken from the preamble: "The life of each human being begins at conception."

Paul Linton, a constitutional scholar and special counsel to the Thomas More Society in Chicago, said Illinois’ "fertilization" language is part of the preamble to the 1975 Illinois Abortion Act. But it doesn’t have any substantive effect and lacks enough detail to reinstate pre-Roe vs. Wade abortion law in the state.

"It’s more of a policy expression or a wish than it is substantive language," Linton said.

Kansas House Judiciary Committee Chairman Lance Kinzer, an attorney and Olathe Republican who opposes abortion, said he sees "zero chance" that lawsuits filed against providers to block abortions or shut providers down would be successful under his state’s new language.

"It is only an aspirational statement," he said, adding, "Symbols are important."

But Talcott Camp, deputy director of the ACLU’s Reproductive Freedom Project, said the language could eventually "open the door to extreme interpretation of other laws. It provides something that future bill sponsors would point to, and say, ‘This is already Kansas law.’"

The new restrictions would take effect July 1, a little more than four years after Wichita Dr. George Tiller — then among the few in the U.S. known to perform late-term abortions — was shot to death as he served as an usher at his church. His killer, Scott Roeder, said he was defending the unborn.

Kansas’ abortion laws have been significantly restricted after Brownback took office in January 2011 and called on legislators to create "a culture of life." Since then, the state has banned most abortions after the 22nd week of pregnancy, restricted private health insurance coverage for elective abortions, required doctors to obtain written permission from parents and guardians before terminating a minor’s pregnancy and provide more legal protections for health care providers who refuse to participate in abortions.

Attempts to impose special health and safety regulations for providers and to prevent Planned Parenthood from receiving public funds to provide non-abortion, family planning services are still being challenged in court.

Since Brownback’s been at the helm, the number of abortions performed in Kansas has dropped 11 percent.

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