Bench Memos

Law & the Courts

Bloody Kansas

The judicial excuses for imposing a radical abortion regime know no end.

On Friday, the Kansas supreme court ruled (in Hodes & Nauser v. Schmidt) that the declaration in section 1 of the Kansas Constitution Bill of Rights, dating from 1859, that “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness” means that any restriction on abortion must be subjected to strict scrutiny (rather than the more permissive “undue burden” standard that the U.S. Supreme Court misread into the federal Constitution in Planned Parenthood v. Casey in 1992).

The ruling came in a challenge to a Kansas law, enacted in 2015, that prohibits use of the dilation-and-evacuation (D&E) method of abortion except where necessary to preserve the life or health of the mother. D&E is the most common method of abortion in the second trimester. In his opinions in the partial-birth abortion cases (Stenberg v. Carhart (2000) and Gonzales v. Carhart (2007)), Justice Kennedy described what ordinary D&E entails (in order to distinguish it from partial-birth abortion, which is a variant of D&E). In his solo dissent, Justice Caleb Stegall quotes Justice Kennedy’s descriptions (citations omitted):

The [D&E] procedure “requires the abortionist to use instruments to grasp a portion (such as a foot or hand) of a developed and living fetus and drag the grasped portion out of the uterus into the vagina.” Using the resistance “created by the opening between the uterus and vagina” the “grasped portion” is torn “away from the remainder of the body.” “For example, a leg might be ripped off the fetus as it is pulled through the cervix and out of the woman.” The baby then “bleeds to death as it is torn limb from limb.” The child “can survive for a time while its limbs are being torn off.” The heartbeat can continue even “with ‘extensive parts of the fetus removed.'” “At the conclusion of a D&E abortion . . . the abortionist is left with ‘a tray full of pieces.'”

Six members of the Kansas supreme court would have you believe that a mother has a “natural right” to have her child killed in this way.

The 80-page per curiam majority pays lip service to the proposition that the “polestar” in interpreting a provision of the state constitution is “the intention of the makers and adopters.” But when the justices actually turn to address whether the “equal and inalienable natural rights” proclaimed in section 1 in 1859 include a right to abortion, they suddenly come us with all sorts of feeble excuses for ignoring the best evidence of “the intention of the makers and adopters”: the statutes, both of Kansas as a territory and of Kansas as a state, that made abortion a criminal offense at and around the time that section 1 was adopted. (We can’t know, they say, whether these enactments “reflected the will of the people”; they “were never tested for constitutionality”; and there was widespread “gender bias” at the time.)

In his lengthy and impressive dissent, Justice Stegall castigates the majority for “abandon[ing] the original public meaning of section 1” and for “paint[ing] the interest in unborn life championed by millions of Kansans as rooted in an ugly prejudice.” Stegall finds “the story told by the majority [to be] a strange one: In it, 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.” Meanwhile, “the experience of women in Kansas … is rendered as a dystopian Handmaid’s Tale of oppression.” Never mind that “[t]here are women on both sides of this debate” and, indeed, that “a majority of the 41 women serving in the Kansas legislature at the time of passage voted in favor of” the D&E ban.

(For those wondering how so many Kansas justices could get it so wrong, I’ll point out that four of the seven justices were appointed by Kathleen Sebelius and two by Bill Graves, who, though a Republican, “fought battle after battle with the conservative wing of his party,” according to this Washington Post summary. Although Sam Brownback served from 2011 until 2018 as governor, the only justice he appointed was Stegall. Addendum/correction: Someone who is much more knowledgeable than I am about the politics of judicial selection tells me that the real power lies with Kansas’s very liberal supreme court nominating commission. Under the so-called “Missouri plan” arrangement, the commission puts together a list of three candidates for each vacancy, and the governor must choose one of those three candidates. (Stegall apparently ended up on the list only as part of some broader compromise.))

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