In a sweeping decision on Friday, the Kansas Supreme Court ruled that its state constitution protects bodily autonomy—including a woman’s right to terminate her pregnancy. The court interpreted the Kansas Constitution to provide stronger protections for abortion rights than the federal Constitution, and its decision cannot be reversed by the U.S. Supreme Court. Friday’s ruling illustrates how state Supreme Courts can safeguard women even as the federal judiciary chips away at Roe v. Wade. It is a signal triumph for both federalism and individual liberty.
The court’s decision in Hodes & Nauser v. Schmidt revolves around a 2015 state law known as S.B. 95 that banned the most common procedure for second-trimester abortions. Reproductive rights advocates challenged the measure under Section 1 of the Kansas Bill of Rights, which declares: “All men [and women] are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.” A district court blocked S.B. 95, ruling that the Kansas Constitution provides the same protections for abortion as the U.S. Constitution. The state court of appeals affirmed that decision, and the state appealed to the Kansas Supreme Court, which voted to affirm, and bolster, the lower court ruling.
In its majority opinion, the high court agreed that the Kansas Constitution protects abortion rights—but held that it goes further than the federal Constitution in its guarantee of bodily autonomy. Unlike the federal Constitution, the majority explained, the Kansas Constitution expressly shields “inalienable rights” from government intrusion. And an exhaustive review of the historical record demonstrates that the framers of the Kansas Constitution intended “its unenumerated natural rights guarantee” to extend beyond the Due Process Clause of the federal Constitution, in which Roe is rooted. Among other things, “inalienable rights” encompass the right to “to control one’s own body, to assert bodily integrity, and to exercise self-determination.” The court explained:
At the heart of [Section 1 of the Kansas Bill of Rights] 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. Few decisions impact our lives more than those about issues that affect one’s physical health, family formation, and family life.
Applying this principle to S.B. 95, the majority easily concluded that the law ran afoul of this principle. “Denying a pregnant woman the ability to determine whether to continue a pregnancy,” the court wrote, “would severely limit her right of personal autonomy. And abortion laws do not merely restrict a particular action; they can impose an obligation on an unwilling woman to carry out a long-term course of conduct that will impact her health and alter her life.”
As a result, any Kansas law that limits abortion access must meet “strict scrutiny.” That requires the state to prove that an abortion restriction is “narrowly tailored to promote” a “compelling interest.” Here, Kansas has not yet met this “searching” standard, as it failed to identify any compelling interest in outlawing a common, safe abortion procedure—and, in the process, “severely” curtailing women’s natural rights. The district court did not apply strict scrutiny to S.B. 95, so the state has not yet had an opportunity to try to prove that the law meets this standard. So the majority sent the case back down for further hearings, with a strong suggestion that Kansas will not be able to “establish a compelling state interest.”
By applying strict scrutiny, the Kansas Supreme Court expressly rejected the current U.S. Supreme Court test for abortion limitations, which simply asks if they impose an “undue burden” on a woman’s right to choose. The majority refused to adopt this loose and notoriously malleable test, holding that it is insufficiently stringent to safeguard inalienable rights under the Kansas Constitution. This “ad hoc balancing test” allows a “weak” state interest to “justify an infringement” on abortion, the Kansas Supreme Court wrote of the current federal standard. It “emphasizes the governmental interest” instead of “the individual’s rights,” and thus “lacks the rigor demanded by the Kansas Constitution for protecting the right of personal autonomy.”
The ruling was 6–1, with three of the court’s liberals joined by two more conservative judges in the majority opinion. Another liberal justice, Daniel Biles, concurred in the judgment but rebuffed the new standard; he would’ve blocked the law under the undue burden test that the majority spurned. A single justice, Caleb Stegall, dissented, insisting that the Kansas Constitution does not protect the right to terminate a pregnancy. He did not attempt to conceal his disdain for abortion, railing against the procedure as “human dismemberment.” And he condemned the majority’s ruling as “the most significant and far-reaching decision this court has ever made.”
Stegall is not wrong that Friday’s decision is monumental. But for those who support the right to bodily integrity, its scope is cause for celebration not denunciation. Like a number of other state Supreme Courts—including, most recently, Iowa’s—the Kansas Supreme Court has ensured that abortion rights will survive in the state if the U.S. Supreme Court overrules Roe. Indeed, it has granted robust protections for abortion access that go far beyond the federal standard. Even if Roe falls, Kansas women will have a constitutional buffer against draconian constraints on their reproductive rights.
Because it is rooted exclusively in the state constitution, Friday’s ruling cannot be overturned by SCOTUS. But it can be reversed by constitutional amendment. That would require both houses of the Legislature to approve an amendment by a two-thirds vote, at which point it would be placed on the ballot and added to the constitution if supported by a majority of voters. Republicans hold a supermajority in both houses of the Kansas Legislature, though the GOP faction is sharply divided between archconservatives and moderates. Democratic Gov. Laura Kelly endorsed Friday’s ruling but has no authority over the amendment process. To forestall an amendment, Kelly will have to persuade Democratic legislators, as well as a handful of moderate Republicans, to stand behind the court.
The fight over abortion rights in Kansas, in other words, is not over. And the future of Friday’s landmark decision is uncertain. But a majority of the court has ensured that, at least for now, the state may not exercise control over women’s bodies. Other state Supreme Courts should take note: This is what judicial courage looks like.
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