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In Historic Ruling, Kansas Supreme Court Declares Abortion Rights ‘Fundamental’

Jessica Mason Pieklo

Friday's decision means the Kansas State Constitution protects abortion rights more vigorously than the U.S. Constitution.

After considering the issue for more than two years, the Kansas Supreme Court on Friday declared the Kansas State Constitution recognizes the right to an abortion, independent of federal law. 

“Section 1 of the Kansas Constitution Bill of Rights provides: ‘All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness,'” the opinion states. “We are now asked: Is this declaration of rights more than an idealized aspiration? And, if so, do the substantive rights include a woman’s right to make decisions about her body, including the decision whether to continue her pregnancy? We answer these questions, ‘Yes.’”

The decision came in the case of Hodes & Nauser MDs, PA, et al v. Derek Schmidt et al, a challenge to SB 95, a 2015 Kansas law that bans dilation and evacuation (D and E), the most common form of second-trimester abortion care. 

Kansas’ Republican-majority legislature was the first in the country to pass a D and E ban, based on legislation pushed by the National Right to Life Committee. Friday’s decision is the first the state supreme court has recognized abortion rights under the state constitution.

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In June 2015, advocates sued in state court to block SB 95, arguing the law unconstitutionally burdens abortion rights and should be blocked. Kansas Judge Larry Hendricks agreed, ruling the measure likely violated the Kansas Constitution as well.

The 199-page decision discusses at length the state constitutional source of abortion rights, grounding it in the state’s protection of “natural rights” and concluded those rights include personal autonomy and bodily integrity, of which the right to make decisions about parenting and procreation. 

“At the heart of a natural rights philosophy is the principle that individuals should be free to make choices about how to conduct their own lives, or, in other words, to exercise personal autonomy,” the decision states. “Few decisions impact our lives more than those about issues that affect one’s physical health, family formation, and family life.”

Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a Friday statement that the court’s decision makes Kansas one of ten states “whose highest courts have affirmed at the state level what the U.S. Supreme Court has upheld for more than four decades: that every woman has a right to make her own decisions about her health and family free from political interference.”

“As this decision makes clear, attempts to undermine that fundamental right by banning safe and accepted methods of abortion cannot stand,” Northrup said.

The decision protects abortion rights in a broader sense than federal law by going beyond the undue burden standard and ruling strict scrutiny, the highest constitutional threshold for judging state actions, applies in these situations instead. “Simply put, the undue burden standard—both as set out in Hellerstedt, and in the concurring opinion, lacks the rigor demanded by the Kansas Constitution for protecting the right of personal autonomy at issue in this case,” the opinion states.

“At issue here is the inalienable natural right of personal autonomy, which is the heart of human dignity. It encompasses our ability to control our own bodies, to assert bodily integrity, and to exercise self-determination,” the opinion continues. “Imposing a lower standard than strict scrutiny, especially mere reasonableness, or the dissent’s ‘rational basis with bite’—when the factual circumstances implicate these rights because a woman decides to end her pregnancy—risks allowing the State to then intrude into all decisions about childbearing, our families, and our medical decision-making.”

“It cheapens the rights at stake.”

Justice Caleb Stegall issued a dissenting opinion, deriding the majority opinion as one that “fundamentally alters the structure of our government to magnify the power of the state—all while using that power to arbitrarily grant a regulatory reprieve to the judicially privileged act of abortion.”

Dr. Leana Wen, president of Planned Parenthood Federation of America, said in a statement that the Kanas Supreme Court ruling should serve as a “strong message” to anti-choice legislators backing unconstitutional restrictions on abortion rights. 

“Today’s Supreme Court ruling reaffirms what we in medicine and public health know to be true—abortion is a safe, standard medical procedure that one in four women will have her in lifetime, and is part of the full spectrum of reproductive health care,” Wen said.

Friday’s decision means advocates have a new tool in challenging abortion restrictions in the state. It also means SB 95 will remain blocked while the case returns to the trial court, where the challenge to the merits of SB 95 will continue.

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