Kansas Attorney General Opinion 2022-007

July 22, 2022
ATTORNEY GENERAL OPINION NO. 2022- 7
The Honorable John Eplee
State Representative, 63rd District
State Capitol, Room 352-S
Topeka, KS 66612
Re: 	Constitution of the State of Kansas—Bill of Rights—Regulation of Abortion
Public Health—Abortion
Synopsis: 	The Value Them Both Amendment to the Kansas Constitution, if adopted,
would not ban or restrict abortion or any medical treatment. Rather, it
leaves the regulation of abortion to the people, through their elected
representatives.
The Value Them Both Amendment to the Kansas Constitution, if adopted,
would 	not 	affect 	a 	physician’s 	ability 	to 	render 	care 	for 	ectopic
pregnancies, miscarriages, or fetal demise. Cited herein: 	2021 House
Concurrent Resolution 5003; K.S.A. 21-5419; 38-2003; 40-2,190; 60-
1901; 65-4a01; 65-6701; 65-6703; 65-6704; 65-6705; 65-6709; 65-6721;
65-6723; 65-6724; 65-6731; 65-6732; 65-6738; 65-6742; 65-6743.
* 	* 	*
Dear Representative Eplee:
As State Representative for the 63rd District, you ask whether the proposed Value
Them Both Amendment to the Kansas Constitution, if adopted, will have any effect on a
physician’s 	ability 	to 	render 	care 	for 	tubal-ectopic 	pregnancies, 	documented
miscarriages, and fetal demise at any state of gestation. In short, the answer is no.

Representative Eplee
Page 2
Value Them Both Amendment
The proposed Value Them Both Amendment to the Kansas Constitution was passed as
2021 House Concurrent Resolution 5003 (HCR 5003) by two-thirds majorities of each
house of the Legislature as required by Article 14 of the Kansas Constitution. 1 HCR
5003 provides for an August 2, 2022 special election to be held in conjunction with the
2022 primary election. 2
If approved by a majority of the voters at the August 2 election, the Value Them Both
Amendment would add the following new section to the Kansas Constitution Bill of
Rights:
§ 22. Regulation of abortion. Because Kansans value both women and
children, 	the 	constitution 	of 	the 	state 	of 	Kansas 	does 	not 	require
government funding of abortion and does not create or secure a right to
abortion. To the extent permitted by the constitution of the United States,
the people, through their elected state representatives and state senators,
may pass laws regarding abortion, including, but not limited to, laws that
account for circumstances of pregnancy resulting from rape or incest, or
circumstances of necessity to save the life of the mother.3
This language does not ban or restrict abortion or medical treatment in any way. Rather,
it leaves decisions about the regulation of abortion to the people, through their elected
representatives.
Thus, to answer your question, we turn to existing Kansas statutes governing abortion.
These statutes are already in place and would not be altered by passage of the
Amendment.4
Miscarriages and Fetal Demise
Kansas statutes consistently define “abortion” to mean:
the use or prescription of any instrument, medicine, drug or any other
substance or device to terminate the pregnancy of a woman known to be
1 See 2021 Journal of the Kansas Senate at 118 (January 28, 2021); 2021 Journal of the Kansas House
at 106-07 (January 22, 2021).
2 HCR 5003, § 3.
3 HCR 5003, § 1.
4 The Value Them Both Amendment does not define “abortion,” so the term would be given its common
public meaning at the time of adoption. See Solomon v. State, 303 Kan. 512, 523, 364 P.3d 536 (2015)
(constitutional language should be interpreted based on the common understanding of the people when
they adopted it); State ex rel. Schneider v. Kennedy, 225 Kan. 13, 21, 587 P.2d 844 (1978) (“The test is
rather whether the legislation conforms with the common understanding of the masses at the time they
adopted such provisions and the presumption is in favor of the natural and popular meaning in which the
words were understood by the adopters.”). In determining the common public meaning of “abortion,”
current statutory definitions might be instructive.

Representative Eplee
Page 3
pregnant with an intention other than to increase the probability of a live
birth, to preserve the life or health of the child after live birth, or to remove
a dead unborn child who died as the result of natural causes in utero,
accidental trauma or a criminal assault on the pregnant woman or her
unborn 	child, 	and 	which 	causes 	the 	premature 	termination 	of 	the
pregnancy. 5
This definition excludes the removal of “a dead unborn child who died as the result of
natural causes in utero, accidental trauma or a criminal assault on the pregnant woman
or her unborn child.” The removal of a dead unborn child also would not “cause[ ] the
premature termination of [a] pregnancy.”
Thus, treatment of a miscarriage or fetal demise 6 does not constitute an abortion under
Kansas 	law 	and 	would 	not 	be 	impacted 	by 	passage 	of 	the 	Value 	Them 	Both
Amendment.
Ectopic Pregnancies
You also asked about the treatment of ectopic pregnancies. “An ectopic pregnancy is a
pregnancy that occurs outside the womb (uterus).” 7 “The most common site for an
ectopic pregnancy is the fallopian tube” but in rare cases, it may occur in the ovary,
abdomen, or cervix.8 The pregnancy cannot continue to birth (term). 9 “An ectopic
pregnancy is a life-threatening condition that requires emergency treatment.”10
The term “ectopic pregnancy” does not appear in any Kansas statute. Nevertheless, the
best conclusion under the Kansas statutes generally addressing abortion is that the
termination of an ectopic pregnancy does not constitute an abortion.
The 	definition 	of 	“abortion” 	in 	Kansas 	statutes 	requires 	the 	termination 	of 	a
“pregnancy,”11 and “pregnancy” is defined as “that female reproductive condition of
having an unborn child in the mother’s body.”12 These statutes do not define the term
“unborn child,” so we give the term its plain meaning. 13 One dictionary defines “unborn
5 K.S.A. 65-6701(a); K.S.A. 65-6723(a); K.S.A. 65-6731(a); K.S.A. 65-6742(a); K.S.A. 65-4a01(a); K.S.A.
40-2,190(c)(1).
6 A miscarriage involves fetal demise before the 20th week of pregnancy, while fetal demise at or after 20
weeks is classified as a stillbirth. See https://www.cdc.gov/ncbddd/stillbirth/facts.html (Centers for Disease
Control and Prevention).
7 https://medlineplus.gov/ency/article/000895.htm (National Institutes of Health, National Library of
Medicine).
8 Id.
9 See https://my.clevelandclinic.org/health/diseases/9687-ectopic-pregnancy.
10 https://my.clevelandclinic.org/health/diseases/9687-ectopic-pregnancy; see also
https://www.mayoclinic.org/diseases-conditions/ectopic-pregnancy/diagnosis-treatment/drc-20372093
(“To prevent life-threatening complications, the ectopic tissue needs to be removed.”).
11 See supra note 4.
12 K.S.A. 65-6701(j); K.S.A. 65-6723(h). The other statutes defining abortion do not include a definition of
pregnancy.
13 See, e.g., State v. Carter, 311 Kan. 206, 213, 459 P.3d 186 (2020).

Representative Eplee
Page 4
child” as a “child not yet born.”14 This would appear to exclude an ectopic pregnancy,
which is not capable of continuing to birth. “Unborn child” is also defined in other
Kansas statutes. Although those definitions only apply to those statutory sections, they
may be instructive here. K.S.A. 65-6732, which contains a legislative declaration that life
begins at fertilization, defines “unborn child” as “all unborn children or the offspring of
human beings from the moment of fertilization until birth at every stage of biological
development.”15 On the one hand, the fact that an ectopic pregnancy involves a
fertilized egg suggests that it is an unborn child. On the other hand, an ectopic
pregnancy is no longer at a stage of biological development leading to birth. Finally,
K.S.A. 	21-5419 	and 	K.S.A. 	60-1901 	define 	“unborn 	child” 	as 	“a 	living 	individual
organism of the species homo sapiens, in utero, at any stage of gestation from
fertilization to birth.”16 Because an ectopic pregnancy occurs outside the uterus, this
definition would exclude an ectopic pregnancy. On balance, we believe the best
interpretation is that the termination of an ectopic pregnancy does not constitute an
abortion as defined by Kansas law.
But even if the termination of an ectopic pregnancy were considered an abortion,
Kansas laws governing abortion consistently make exception for abortions that are
necessary to preserve the life of the mother. 17 Because ectopic pregnancies threaten
the life of the mother, passage of the Value Them Both Amendment would not affect a
physician’s ability to render care for ectopic pregnancies in any event.
Conclusion
Passage of the Value Them Both Amendment would not ban or restrict abortion or any
medical treatment. Nor would it affect a physician’s ability to render care for ectopic
pregnancies, miscarriages, or fetal demise.
14 Child - unborn child. Black’s Law Dictionary (11th ed. 2019).
15 K.S.A. 65-6732(c)(2).
16 K.S.A. 21-5419(a)(2) (emphasis added); K.S.A. 60-1901(c) (emphasis added).
17 K.S.A. 65-6701(g) (“’Medical emergency’ means a condition that, in reasonable medical judgment, so
complicates the medical condition of the pregnant woman as to necessitate the immediate abortion of her
pregnancy to avert the death of the woman or for which a delay necessary to comply with the applicable
statutory requirements will create serious risk of substantial and irreversible physical impairment of a
major bodily function.”); K.S.A. 65-6703(a); K.S.A. 65-6704(f); K.S.A. 65-6705(a) and (j)(1); K.S.A. 65-
6709 (exception for medical emergency); K.S.A. 65-6721(a); K.S.A. 65-6724(a); K.S.A. 65-6738; K.S.A.
65-6743(a); K.S.A. 40-2,190(a); K.S.A. 38-2003(b)(2).

Representative Eplee
Page 5
Sincerely,
Derek Schmidt
Kansas Attorney General
Dwight R. Carswell
Deputy Solicitor General
DS:SS:DC:sb