Bench Memos

Politics & Policy

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.

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.

Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

Most Popular

White House

Trump and the ‘Racist Tweets’

What does “racist” even mean anymore? Racism is the headline on President Trump’s Sunday tweets -- the media-Democrat complex assiduously describes them as “racist tweets” as if that were a fact rather than a trope. I don’t think they were racist; I think they were abjectly stupid. Like many ... Read More
White House

The Trump Steamroller

As we settle into high summer and the period of maximum difficulty in finding anything to fill in hours of television news, especially 24/7 news television, two well-established political trends are emerging in this pre-electoral period: The president’s opponents continue to dig themselves into foxholes that ... Read More
U.S.

Men Literally Died for That Flag, You Idiots

The American flag’s place in our culture is beginning to look less unassailable. The symbol itself is under attack, as we’ve seen with Nike dumping a shoe design featuring an early American flag, Megan Rapinoe defending her national-anthem protests (she says she will never sing the song again), and ... Read More
Politics & Policy

Ilhan Omar Is Completely Assimilated

Beto O’Rourke, the losing Texas Senate candidate who bootstrapped his way into becoming a losing presidential candidate, had a message for refugees who had come to America: Your new country is a hellhole. The former congressman told a roundtable of refugees and immigrants in Nashville, Tenn., last week: ... Read More
Sports

We All Wanted to Love the Women’s Soccer Team

For the first time in my life, I did not root for an American team. Whatever the sport, I have always rooted American. And if those who called in to my radio show were representative of my audience, many millions of Americans made the same sad choice. It takes a lot for people like me not to root for an ... Read More
White House

On Gratitude and Immigration

Like both Rich and David, I consider it flatly inappropriate for the president of the United States to be telling Americans -- rhetorically or otherwise -- to “go back where you came from.” In consequence, you will find no defense of the president from me, either. What Trump tweeted over the weekend was ... Read More
U.S.

The ‘Squad’ Gives a Gift to Donald Trump

On Sunday, Donald Trump gave the Democrats a gift -- comments that indicate he thinks native-born congresswomen he detests should “go back” to the countries of their ancestors. On Monday, the four congresswomen handed Trump a gift in return, managing to respond to the president’s insults in some of the most ... Read More
Books

The Plot against Kavanaugh

Justice on Trial, by Mollie Hemingway and Carrie Severino (Regnery,  256 pp., $28.99) The nomination and confirmation of Brett Kavanaugh to the Supreme Court was the political event of 2018, though not for the reasons anyone expected. All High Court confirmations these days are fraught with emotion and tumult ... Read More