The seminal abortion decision in Kansas is Hodes & Nauser, MDs v. Schmidt, issued in 2019 (Hodes I).[1] The Kansas Supreme Court remanded the case to the district court for evidentiary proceedings upon the Supreme Court’s determination that Section 1 of the Kansas Bill of Rights protects a natural right to abortion. The State of Kansas, eventually represented by Attorney General Kris Kobach, then appealed the district court’s ruling that the Kansas unborn child protection from dismemberment abortion act, K.S.A. 65-6741 et seq.,[2] violated Section 1. The Supreme Court has now affirmed the district court in an opinion designated Hodes & Nauser, MDs v. Kobach (Hodes II), filed on July 5, 2024.[3] On the same day, the Supreme Court filed Hodes & Nauser, MDs v. Stanek (Stanek) which held certain statutes and administrative regulations governing abortion facilities also violated Section 1.[4]
The Hodes II and Stanek majority feign a magisterial tone, following the example of the majority in Hodes I, but their pro-abortion certainty had an assist from the State. Already in Hodes I, the State failed to argue the manifestly pro-life language of Section 1.[5] On remand in Hodes II, the State then “served no written discovery,” “did not depose any . . . witnesses,” and after designating only one expert witness, “later withdrew that witness ‘given the failure of our own expert.'”[6] As Justice Caleb Stegall noted in Stanek: “[T]he State has badly bungled its case by failing (or refusing) to marshal even a timid evidentiary basis for its claims when it had the full opportunity to do so below.”[7]
With respect to the law, the majority in Hodes I not only ruled without adequate briefing from the State, it relied on a theory briefed by neither party.[8] And now the majorities in Hodes II and Stanek, together with concurring Justices Eric Rosen and Dan Biles in Stanek, carry on a sort of verbal war with dissenting Justice Stegall on the application of the strict scrutiny standard. Adding to the tumult are the concurrences of Justice Evelyn Wilson–in Hodes II on a basis never briefed, and in Stanek on the basis that Hodes I was wrongly decided but should be followed for the sake of judicial integrity. Finally, Justice Keynen Wall took no part in Hodes II and Stanek for reasons unknown to this writer.
The impression left by all three decisions is judicial fragility. It is therefore interesting that the majority in Hodes II appealed to the defeat of the Value Them Both amendment as support for the ruling in Hodes I.[9] Without citation to probative evidence or legal precedent, the majority asserted: “[T]he August 2022 vote of the people overwhelmingly reject[ed] a proposed constitutional amendment to give those same elected representatives unfettered regulatory control over abortion.”[10] This writer is certain that if the vote had gone the other way, the same majority would have found reason to hold the amendment’s language did not give the legislature unfettered regulatory control over abortion.[11] As for the issue of popular support, every pro-life activist personally known to this writer opposed the amendment. He and numerous others, representing several pro-life organizations, coordinated their efforts. This website, to take one instance, was started to oppose the amendment.[12]
The Value Them Both Amendment would have been as effective a pro-life tool as the litigation in Hodes I, Hodes II, and Stanek has been. The decision in Hodes I was sufficiently willful that the only effective approach would have been to take the exact language of the Supreme Court and negative it. In such a situation, the Court would have found it politically impossible to ignore the will of the people. The amendment actually presented to the people, however, was so confusing the Court can say anything it likes about its meaning.
Along with everything else about these opinions, the Hodes II majority’s reliance on the August 2022 vote, an expedient also appearing in Justice Wilson’s Stanek concurrence,[13] demonstrates weakness. A majority of the current Kansas justices believe unborn children may be murdered without restraint.[14] But the Kansas Constitution says in Section 1 of the Bill of Rights: “Equal Rights: All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”[15] We have a pro-life constitution, and Kansans need to pray for the courage and perseverance to vindicate this right.
[1] 114153_2.pdf (kscourts.gov)
[5] See A Kansas Abortion Play in Five Acts – Sunflower Signpost; Is the Value Them Both Amendment a Trojan Horse for Abortion? Pt. 3 – Sunflower Signpost
[6] 124130.pdf (kscourts.gov), slip op. at 6.
[7] 125051.pdf (kscourts.gov), slip op. at 80.
[8] Is the Value Them Both Amendment a Trojan Horse for Abortion? Pt. 2 – Sunflower Signpost
[9] 124130.pdf (kscourts.gov), slip op. at 10, 23.
[10] 124130.pdf (kscourts.gov), slip op. at 23.
[11] Is the Value Them Both Amendment a Trojan Horse for Abortion? Pt. 4 – Sunflower Signpost
[12] Is the Value Them Both Amendment a Trojan Horse for Abortion? Pt. 1 – Sunflower Signpost
[13] 125051.pdf (kscourts.gov), slip op. at 67-68.
[14] Pope John Paul II, in his encyclical Evangelium vitae, repeatedly called abortion “murder.” See Is the Value Them Both Amendment a Trojan Horse for Abortion? Pt. 7 – Sunflower Signpost
[15] Kansas Bill of Rights | State Library of Kansas – Official Website (kslib.info)