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.
The reality is that during the 19th century, abortion had been substantially proscribed under the common law, and at the time the Kansas Bill of Rights was adopted in 1859, the growing trend in that and other states was to strengthen criminal statutory abortion prohibitions. Those laws went much farther in restricting abortion than S.B. 95. The question presented to the court is not what policy should be, but what the law actually says. There can be no doubt as to what the drafters of Kansas’ constitution would have thought of extending their broad language about natural rights to include a right to conduct dismemberment abortions.
Yet the majority lacked enough self-awareness to invoke authorities from Locke to Lincoln as if they somehow supported their conclusion while dismissing the explicit historical evidence against them as “tethered to prejudices from two centuries ago.” “In this imagined world,” retorted Justice Caleb Stegall, the court’s lone dissenter, “the Liberty Bell rings every time a baby in utero loses her arm.”
The outcome-seeking nature of the court’s flimsy analysis is transparent, and its attempt to invoke history is an embarrassment. One member of the majority even penned a concurrence that distanced himself from what he called the “historical back-and-forth” between the majority and the dissent, preferring the supposed clarity of admitted living constitutionalism. (Well, he sort of admitted it, preferring to use the euphemism “contemporary context.”) That only one justice on that seven-member tribunal had the good sense to dissent from this jurisprudential travesty should be a red flag for any observer of American courts.
What’s the matter with the Kansas Supreme Court? The answer is to be found beyond the content of the court’s opinion. To understand the problem requires understanding the system of judicial selection that prevails in that and regrettably many other states. More on that in part 2.