TOPEKA, Kan. — The Supreme Court of Kansas has ruled that the rights to “life, liberty and the pursuit of happiness” in the state Constitution’s Bill of Rights encompass a woman’s “right” to an abortion.
“We conclude that, through the language in section 1, the state’s founders acknowledged that the people had rights that pre-existed the formation of the Kansas government. There they listed several of these natural, inalienable rights …,” the court wrote in its opinion, released on Friday. “Included in that limited category is the right of personal autonomy, which includes the ability to control one’s own body, to assert bodily integrity, and to exercise self-determination.”
“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,” it asserted. “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.”
As previously reported, in 2015, then-Gov. Sam Brownback signed Senate Bill 95 into law, banning what is termed as “dismemberment abortions.” The bill passed the Senate 31-9 and moved to the House where it likewise was approved 98-26.
The law prohibits “knowingly dismembering a living unborn child and extracting such unborn child one piece at a time from the uterus through the use of clamps, grasping forceps, tongs, scissors or similar instruments that, through the convergence of two rigid levers, slice, crush or grasp a portion of the unborn child’s body in order to cut or rip it off.”
The prohibition was challenged by abortionist Herbert Hodes and his daughter, Traci Nauser, who argued that it placed a burden on their “right” to perform second trimester abortions.
In court, the state defended the ban, in part, by presenting other options for ending the lives of the unborn.
“The state has offered three alternatives to the standard D & E procedure: labor-induced abortion, inducing fetal demise with digoxin injections, and inducing fetal demise by cutting the umbilical cord (also known as transection),” an appeals court ruling outlines.
In June 2015, Shawnee County District Judge Larry Hendricks placed an injunction on the enforcement of the law while the constitutionality of the legislation is decided in full in court.
“The alternatives do not appear to be medically necessary or reasonable,” he said. “[P]atients’ fundamental right to terminate a pregnancy will be unduly burdened if SB 95 goes into effect.”
The state then filed an appeal, and in January 2016, the Kansas Court of Appeals announced that it was was evenly split over the matter.
The half that favored the injunction pointed to the U.S. Supreme Court’s ruling on same-sex “marriage,” stating that the courts seem to find “rights” in the law that aren’t expressly written in the Constitution. It used the example and others to conclude that Kansas must include the “right” to abortion.
But the other seven justices that favored the law said that they weren’t convinced that abortion has ever been considered a right, nor should it be.
“Simply put, there is nothing within the text or history of §§ 1 and 2 of the Kansas Constitution Bill of Rights to lead this court to conclude that these provisions were intended to guarantee a right to abortion,” they wrote. “Our state’s founders held sacred the basic concepts of life, liberty, and the pursuit of happiness, and they expressed those sentiments in that order in § 1 of our Bill of Rights.”
“Even if Kansas courts were to find substantive due process rights under § 1, as opposed to a mere expression of traditional beliefs, we would not find a substantive due process right to abortion,” they continued. “The subject of abortion places the pregnant woman’s liberty interest directly at odds with the unborn child’s right to life.”
In April 2016, the Kansas Supreme Court agreed to hear an appeal of the case. It took three years to issue a ruling, and now has concluded that inherent in the constitutional rights to liberty and the pursuit of happiness is the “natural right to make decisions about parenting and procreation.”
It pointed to other cases nationwide that have upheld the right to control one’s own body, and also noted that the U.S. Supreme Court has found that “to marry, establish a home and bring up children” are “long recognized at common law as essential to the orderly pursuit of happiness by free men.”
The court then concluded that Section 1 of the Kansas Bill of Rights “protects an inalienable natural right of personal autonomy, which today we hold to be fundamental. Presuming that any state action alleged to infringe that right is constitutional dilutes the protections established by our Constitution.”
“[A] woman has a federal constitutional right to access an abortion, including whenever it is necessary to protect her health,” it also said. “A regulation that prevents her from accessing the safest method of abortion for her places an undue burden on that right. These holdings have particular significance in this case, where the trial court found that S.B. 95 has removed access to the method for performing a second-trimester abortion that is the safest in most cases.”
One justice, Caleb Stegall, issued a sharp and lengthy dissent, calling the conclusion of his peers “far reaching.”
“Perhaps it is apropos — though macabre — that while reviewing a prohibition against human dismemberment we have fashioned a 20th century jurisprudence of fundamental rights and tiered scrutiny into a procrustean bed upon which we now force the Kansas Constitution Bill of Rights to lie,” he wrote.
“[T]he 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,” Stegall said.
He stated that by the way his fellow justices framed their decision, it would seem that “all the luminaries of the western legal tradition — from Sir Edward Coke and William Blackstone to Edmund Burke and Thomas Jefferson — would celebrate and enshrine a right to nearly unfettered abortion access. In this imagined world, the Liberty Bell rings every time a baby in utero loses her arm.”
Stegall also found it ironic that while the court found a “fundamental right” to abortion, Kansas simultaneously “criminalizes homicides of the unborn; refuses to execute pregnant convicts; permits wrongful death actions for the unborn; gives no effect to a living will when the patient is pregnant; and provides for the representation of the unborn in trust and probate proceedings.”
“Abortion has become the judicially preferred policy tail wagging the structure of government dog,” he lamented. “For the majority, the settled and carefully calibrated republican structure of our government must give way, at every turn, to the favored policy. But in my considered judgment, constitutional structure is the very thing securing and guaranteeing the full range of human liberty.”
“History and reason suggest that those who, in the name of liberty, tear down that edifice will wind up out in the political elements, unsheltered and exposed to the cold wind of every arbitrary power.”
2 Chronicles 19:6 reads, “And [he] said to the judges, ‘Take heed what ye do, for ye judge not for man but for the LORD, who is with you in the judgment.'”