The Case
In 2015, before the Act took effect, two abortion doctors in Johnson County named Hodes and Nauser filed suit against the State of Kansas in Shawnee County district court. They sued in part the Attorney General of the State, Derek Schmidt, hence the name of the case: Hodes & Nauser, MDs. v. Schmidt. In 2019, the Kansas Supreme Court issued its decision.
The link just given goes to a useful page of the Kansas Appellate Courts website. First is the decision itself, then a video of the oral arguments, then a list of filings in the case. The filings include the briefs of the parties and a few district court documents. More district court documents may be available on Westlaw.com (depending on subscription), a commercial site found in some law libraries.
The documents show the doctors filed their action under the Kansas constitution alone. As Pt. 1 indicated, there was no need to do so because the federal constitution provided ample protection for abortion. In addition, no Kansas court had ever addressed whether the state constitution protects abortion.
The doctors, however, wanted to establish a right to abortion under the state constitution distinct from that provided by the federal constitution. There are several advantages to that, from an abortionist’s perspective, the most important being that abortion would remain protected even if the United States Supreme Court reverses Roe and its progeny. The federal courts also apply an “undue burden” standard to abortion cases, which is more deferential to legislative efforts to restrict abortion than the “strict scrutiny” standard, and the doctors wanted the Kansas Supreme Court to adopt the more stringent test.
The doctors raised three sections of the Kansas Bill of Rights in their pleadings before the district court. The Kansas Bill of Rights, by the way, is an integral part of the constitution adopted at the Wyandotte convention in 1859, and accepted by the United States Congress in 1861. Unlike the Bill of Rights in the United States Constitution, the initial sections of Kansas Bill of Rights were not amendments to the original document.
The doctors pled sections 1, 2, and 17 of the Kansas Bill of Rights. The Kansas Supreme Court considered only section 1, so that alone is discussed here. Section 1 states: “Equal rights. All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”
Interestingly, given the language of section 1, the doctors did not claim a “natural” right to abortion. They instead pled a “fundamental” right. And this was the language the district court adopted in its decision.
The doctors similarly briefed the case to the Supreme Court based on a “fundamental” right. Thus at oral arguments there was almost no discussion of a “natural” right to abortion. Not surprisingly, the doctors’ lawyer did not argue the term. The State’s attorney remarked in passing that a “natural” right as understood by 17th century thinkers like John Locke and Edward Coke did not include abortion, and that section 1 of the Bill of Rights specifically mentioned a right to “life,” which would not indicate a right to abortion.
Despite the lack of briefing and argument on a “natural” right, the Kansas Supreme Court based its decision on that analysis. The Court, however, failed to address the points made by the State at oral arguments—that historically natural rights did not include a right to abortion, and that if anything the state’s constitution would protect unborn life. In any event, the Court’s decision to decide a novel question of law based on analysis not briefed by the parties is remarkable.
Perhaps because it lacked briefing on natural rights, Hodes & Nauser reads in places more like a philosophical treatise than a legal decision. The Court made plain that it was not reading the Kansas constitution so much as explicating rights which preexisted the Kansas constitution. According to the Court, section 1 of the Bill of Rights “protects” these “natural” rights.
Yet the Court never referred to a “natural right to abortion.” Instead, it discussed a natural right to “personal autonomy,” which it said includes a woman’s decision “whether to continue a pregnancy.” The emphasis in the Court’s analysis is always on this personal autonomy of the mother, not on the abortion, or death, of the child. It would indeed be difficult to reconcile the ideas of “nature” and “death,” given that by nature the child would live, or else the abortion would be unnecessary. The child is killed, in other words, which is logically contrary both to the child’s nature, which is to grow, andthat of the mother, which is to support the child’s growth. But this is the price of personal autonomy in Kansas.
Thus the most illustrative passage in the Court’s opinion is its assertion that abortion gives women the “ability to seize and maximize opportunity.” One must imagine the conversation between a mother who has chosen abortion and her dead child. “Sorry, son,” or, “sorry, daughter, I wanted to seize and maximize opportunity.” The child would no doubt believe that he or she would also have been an opportunity for the mother, and that in addition all of the child’s own opportunities were thereby lost. If the Court believed there are opportunities for women more important that bearing a child, and that these opportunities are worth the child’s life besides, the Court should have explained what they are.
The Court would no doubt play coy if pressed and say the choice should be up to the mother as a “liberty” interest. But the Court is in fact deciding for the child, a point it will never acknowledge. State-protected abortion is an assertion of governmental jurisdiction over innocent human life. The Court first asserts such jurisdiction and then claims it is restraining governmental authority. The entire thing is a lie, but lies and murder go together.
The Court finally decided that legislative restrictions on abortion would be reviewed under the strict scrutiny standard. This standard requires the State to prove a compelling governmental interest and that the legislation is narrowly-tailored to meet the interest. The burden is on the State to make such a showing.
Three times at oral arguments the attorney for the doctors said the State would have a compelling interest in restricting abortion after the child’s viability. She mentioned it first without prompting, and she then repeated the point under specific questioning by Justices Beier and Stegall. In its decision, the Court did not make such a holding.
The Kansas Supreme Court therefore went beyond what the abortion doctors wanted by holding abortion is a natural right and by not holding viability is a compelling governmental interest. When combined with the tone of the justices’ questions at oral arguments and their personal demeanor, in this writer’s opinion the majority appeared eager to promote abortion rights in Kansas. They were activists, in other words.
The Kansas legislature responded with the “Value Them Both” amendment to the Kansas constitution. The amendment is up for vote on August 2, 2022. The text of the amendment is considered next.