Today, in a 6-1 decision, the Kansas Supreme Court held in Hodes & Nauser v. Schmidt, that the state constitution guarantees a right to abortion.
The named plaintiffs, Herbert Hodes and his daughter Traci Nauser, are two late-term abortionists who challenged Kansas’ ban on live dismemberment abortions—abortions which cause death by ripping the limbs and torso off of a fetus. Over the last several years, federal courts have declared similar bans on dismemberment abortions unconstitutional, but today’s decision is significant because, unlike other cases, it is based on a state constitutional right to abortion.
The Majority Opinion
The majority in Hodes, held that Section 1 of the Kansas Bill of Rights enshrine a right to abortion in the state constitution, by providing “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.” This language, the Court concluded, guaranteed citizen “rights that preexisted the formation of the Kansas government,” and included in the “natural, inalienable rights” protected by Section 1 are “the right of personal autonomy, which includes the ability to control one’s own body, to assert bodily integrity, and to exercise self-determination.”
The Kansas Supreme Court reasoned:
“This right allows a woman to make her own decisions regarding her body, health, family formation, and family life—decisions that can include whether to continue a pregnancy. Although not absolute, this right is fundamental. Accordingly, the State is prohibited from restricting this right unless it is doing so to further a compelling government interest and in a way that is narrowly tailored to that interest.”
After concluding that the Kansas constitution guarantees a right to an abortion, the state Supreme Court remanded the case for a determination of whether the Kansas Unborn Child Protection from Dismemberment Abortion Act violates the newly defined constitutional right.
While the outcome was expected, given that former Kansas Governor Kathleen Sebelius, an abortion supporter, had appointed four of the seven Kansas Supreme Court justices, the 6-1 vote surprised some in the pro-life community. In addition to Sebelius’ appointed justices, Justices Marla Luckert and Lawton Nuss signed on to the majority opinion. The opinion was issued as a per curiam decision, thus not naming an individual justice as the author.
The sole dissent came from Justice Caleb Stegall. In his lengthy dissent, Stegall stressed that “this case is not only about abortion policy—the most divisive social issue of our day—it is more elementally about the structure of our republican form of government.” Continuing, Justice Stegall explained:
“Here we venture onto a battlefield as old as politics itself. And as we argue about the structure of government—and ultimately delineate the proper conditions for just rule—we must never forget that we are also actively engaged in ruling.
The structural idea that gave birth to Kansas as a political community, which has achieved consensus support across most of our history, is that the proper conditions for just rule are met via participatory consent to secure and promote the common welfare. Today, a majority of this court dramatically departs from this consensus. Today, we hoist our sail and navigate the ship-of-state out of its firm anchorage in the harbor-of-common-good and onto the uncertain waters of the sea-of-fundamental-values. Today we issue the most significant and far-reaching decision this court has ever made.
The majority’s decision is so consequential because it fundamentally alters the structure of our government to magnify the power of the state—all while using that power to arbitrarily grant a regulatory reprieve to the judicially privileged act of abortion. In the process, the majority abandons the original public meaning of section 1 of the Kansas Constitution Bill of Rights and paints the interest in unborn life championed by millions of Kansans as rooted in an ugly prejudice.”
The Kansas Supreme Court’s decision today represents the latest example of the left pushing for the expansion of abortion laws. Earlier this year, New York’s passage of an extreme abortion-until-birth law made headlines, as did a similar law that failed in Virginia. The Kansas case is different though, as the pro-abortion decision came from the unelected judicial branch: By creating a state constitutional right to abortion, the Kansas Supreme Court has usurped the legislative branch’s authority to enact pro-life laws consistent with the conservative values of Kansans.
The Pro-Life Reaction
Mary Kay Culp, executive director of Kansans for Life, told The Federalist:
“This horrendous ruling is due to the Court’s false claim that there exists a ‘right to abortion’ in our 1859 state constitution that despite being unstated somehow deserves to trump 45 years of citizen efforts that have cut abortions in half, increased women’s right to know protections, and resulted in the first state law to send the heinous dismemberment abortion method packing.”
Over the last decade, abortion providers and advocacy organizations have quietly pushed a strategy of using liberal judges in conservatives states to invent a state constitutional right to abortion—both as a failsafe should the United States Supreme Court overturn Roe v. Wade and as a means of attacking state restrictions on abortion upheld by federal courts.
The strategy has proven successful, as seen by NARAL Pro-Choice America’s boast that “15 states’ constitutions provide greater protection of a woman’s right to choose than does the federal constitution.” For instance, while the U.S. Supreme Court upheld a law prohibiting physician assistances from performing abortions, the Montana Supreme Court struck the law, concluding it violated the state constitution.
The Kansas Supreme Court decision cannot be appealed to the U.S. Supreme Court because the power to interpret a state constitution rests solely with the state’s judicial branch. That leaves pro-life Kansans with one option—amend the state constitution. To do so, both the Kansas House and Senate must approve a proposed constitutional amendment by a two-thirds majority vote, at which point the amendment is placed on the state’s next November ballot for voters to decide.
With the state’s legislative session set to end next week, it is unlikely pro-life representatives will succeed in approving a proposed constitutional amendment before recessing for the summer. Absent a special election, the earliest Kansans could seek to overturn the decision, then, would be during the 2020 August primaries. Or, if delayed, the measure could be on the ballot for the November 2020 presidential election, at which time the future of Roe would also likely be on the line—as well as the lives of millions of human beings.