A high-stakes court case challenging the constitutionality of Kansas abortion restrictions should be retried, the attorney general’s office argued in a filing this week.

The question is whether the filing was made in time for a Johnson County judge to weigh it on its merits or if Kris Kobach’s office missed the deadline for requesting a new trial.

On Aug. 3, hours before he was sworn in as a Kansas Supreme Court justice, then-District Court Judge K. Christopher Jayaram granted a permanent injunction blocking numerous controversial requirements imposed on abortion providers by Kansas lawmakers over the last three decades.

Under state law, the deadline for requesting a retrial is 28 days after the initial judgment was entered — Aug. 31 in this case. The court record shows Kobach’s office initially filed its retrial motion at 5:49 p.m. on Aug. 31.

But the next morning at 8:29 a.m., the clerk’s office rejected the state’s entire filing, citing exhibits that were improperly formatted without cover pages, exhibit titles, case numbers or party names.

“If you refile without a cover page, this is subject to being rejected again,” the clerk’s note to the attorney general’s office read in part, an exhibit in the court record shows.

Within an hour of that rejection on Sept. 1, Kobach’s office resubmitted its retrial motion with properly formatted exhibits. By the end of the day, the state had filed another motion asking the court to update the time stamp on its retrial motion to reflect that it had been properly submitted on Aug. 31.

“Defendants have conferred with Plaintiffs, who do not oppose this motion,” says the filing. It was signed by Deputy Attorney General James R. Rodriguez.

On Sept. 2, the state took a different approach, asking the Kansas Supreme Court to hear an appeal of the case based on Jayaram’s initial ruling.

“The notice of appeal (to the Supreme Court) was filed simply to cover all bases,” said Danedri Herbert, a spokesperson for the attorney general’s office, in an email statement.

“If the district court considers our motion for new trial, the notice of appeal will be deemed premature,” Herbert said. “The question of whether the district court should allow a new trial is now before a new district court judge.”

It remains to be seen whether the court will weigh the motion for a retrial on its merits or penalize the state for submitting its properly labeled records hours after the Aug. 31 deadline.

Alleging religious bias

Jayaram’s 261-page ruling striking down state abortion restrictions came nine months after a bench trial in which abortion clinic owners and physicians argued the regulations were designed to scare and shame people out of terminating pregnancies.

Some of the restrictions enjoined by the decision have been on the books since 1997. Others, including a requirement that abortion providers survey patients about their reasons for seeking the procedure and provide medically dubious information suggesting that pill abortions are reversible, were adopted by the Kansas Legislature in 2023 and 2024.

In the motion requesting a retrial in district court, the attorney general’s office accused Jayaram of discounting the state’s witnesses based on their religious beliefs opposing abortion.

“(R)eligious bias permeates the Judgement,” the motion says, calling the previous proceedings “a trial in which the State’s experts were excluded as ‘advocacy’ while Plaintiffs’ were admitted as ‘science.’”

The state’s witnesses, including anti-abortion medical practitioners and women who came to regret their decision to have abortions, were “asked whether their ‘religion’ or ‘religious community’ has ‘a view about when human life begins’ and ‘views about abortion,’” the retrial motion said.

By contrast, the attorney general’s office argued, the abortion providers’ medical experts were not questioned at length about their “strong personal, religious and political views in favor of abortion.”

“The trial judge found every one of Plaintiffs’ thirteen witnesses credible, often in superlatives — ‘extremely powerful,’ ‘exceedingly credible,’ ‘exceptionally compelling,’” reads the state motion.

“In contrast, the trial judge gave ‘essentially no weight’ or ‘no weight whatsoever’ to every State witness, including the three women who testified about their own abortions ... whose testimony was dismissed as ‘significantly influenced by the obvious philosophical biases’ they had ‘developed,’” the filing continues.

The attorney general’s office argued that the state defendants were denied an opportunity to have their evidence impartially evaluated.

The office also renewed its argument that abortion providers shouldn’t be allowed to sue on behalf of their patients. The filing additionally claimed the court erred by not considering whether changes to the abortion restrictions made by Kansas lawmakers this year affected their constitutionality.

‘Facts and scientific evidence’

Alice Wang, senior attorney at the Center for Reproductive Rights, which represented the Johnson County abortion providers in court, said the August ruling made it clear that the Kansas abortion restrictions are constitutionally indefensible.

“In a decision grounded in facts and scientific evidence, the court correctly recognized that these laws interfered with a doctor’s ability to take care of their patients,” Wang said in an email statement. “Restrictions like these also wrongfully insert the government into patient exam rooms and personal medical decision-making.”

She said the retrial motion is the latest attempt by Kobach’s office to circumvent the will of Kansas voters, who in 2022 rejected a proposed amendment that would have removed the right to an abortion from the state constitution.

Last month, Kansans voted down a proposed overhaul of the Kansas Supreme Court’s judicial selection process that conservatives, including Kobach, touted as a potential avenue for assembling an anti-abortion majority on the high court.

“The state wants to sidestep the will of Kansans in an attempt to prevent doctors from advocating for their patients’ constitutional rights in court,” Wang said. “This baseless argument has already been repeatedly rejected in this case and we will continue fighting to ensure that the protections guaranteed by the Kansas Constitution are a reality for all.”

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