AGO 1989-032.

• Case Date: March 21, 1989
• Court: Kansas

Kansas Attorney General Opinions 1989. AGO 1989-032. March 21, 1989ATTORNEY GENERAL OPINION NO. 89-32The Honorable Don Sallee State Senator First District State Capitol Room 128-S Topeka, Kansas 66612 Re: Crimes and Punishments--Kansas Criminal Code; Crimes Against Persons--Criminal Abortion; Statute Unconstitutional Synopsis: While the state may require abortions to be performed in licensed facilities from and after the first trimester, K.S.A. 21-3407 sweeps too broadly and the offending provisions cannot be severed from the rest without legislative amendment. We note that the United States Supreme Court is currently considering a case which may modify Roe v. Wade, and thus render this opinion invalid. Cited herein: K.S.A. 21-3407. * * * Dear Senator Sallee: You request our opinion regarding K.S.A. 21-3407, the criminal abortion statute, and whether any part of it remains valid in light of the court decisions in Poe v. Menghini, 339 F.Supp. 986 (D.Kan.1972), Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and their progeny. Specifically, you are concerned with the requirement that abortions be performed in licensed facilities and question whether K.S.A. 21-3407 might be enforceable in this regard at any stage of pregnancy and under what conditions. K.S.A. 21-3407 provides in part:

"(2) A person licensed to practice medicine and surgery is justified in terminating a pregnancy if he believes there is substantial risk that a continuance of the pregnancy would impair the physical or mental health of the mother or that the child would be born with physical or mental defect, or that the pregnancy resulted from rape, incest, or other felonious intercourse; and either:

"(a) Three persons licensed to practice medicine and surgery, one of whom may be the person performing the abortion, have certified in writing their belief in the justifying circumstances, and have filed such certificate prior to the abortion in the hospital licensed by the state board of health and accredited by the joint commission on accreditation of hospitals where it is to be performed, or in such other place as may be designated by law; or

"(b) An emergency exists which requires that such abortion be performed immediately in order to preserve the life of the mother."

In Poe v. Menghini (1972) the United States District Court for...