What’s the Matter with the Kansas Supreme Court? (Part 1)

On Friday, in Hodes & Nauser v. Schmidt, a 6-1 majority of the Kansas Supreme Court struck down S.B. 95, a law that prohibits the use of dilation and evacuation (D & E) abortions except where necessary to preserve the mother’s life or to prevent a “substantial and irreversible physical impairment of a major bodily function of the pregnant woman.”

D & E abortions entail dismemberment of a fetus. They are a common form of abortion during the second trimester and later. Partial-birth abortion is a variation on this procedure, and the federal prohibition on it was upheld by the Supreme Court in Gonzales v. Carhart (2007), in a decision written by Justice Anthony Kennedy.

In this case, the court grounded its decision in the Kansas Constitution rather than the U.S. Constitution, so no ruling by the U.S. Supreme Court reaching a different conclusion under the Fourteenth Amendment would limit the new abortion regime in Kansas.

Does the Kansas Constitution have any more to say about abortion than the U.S. Constitution? The Hodes & Nauser majority notes that Section 1 of the Kansas Bill of Rights’ declaration that “All men are possessed of equal and inalienable natural rights” contains a phrase not found in the U.S. Constitution: “inalienable natural rights.” In other words, no.

But that was enough to convince the court it was on to something. Its 118-page per curiam (unsigned) judicial opinion meandered from the historical and “philosophical underpinnings of natural rights” to an exploration of bodily integrity to how “liberty and the pursuit of happiness” must include “decisions about parenting and procreation” to how natural rights extend to women in general and pregnant women in particular, before straining to downplay the one aspect of Kansas legal history that actually addresses abortion: Kansas’ longstanding statutes, dating back to the earliest years of statehood, that prohibited the practice.

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