Kansas Supreme Court Reaffirms State Constitutional Right to Abortion
The court declined to overturn its recent holding that abortion is protected by the state constitution’s right to personal autonomy.
The Kansas Supreme Court this month reaffirmed the state constitutional right to abortion, rejecting the state’s request that the court overturn its 2019 holding that abortion is protected.
The case, Hodes & Nauser v. Kobach began in 2016, when a group of doctors challenged a law prohibiting the most common second-trimester abortion procedure known as dilation and evacuation. The plaintiffs won a preliminary injunction at the trial level, halting the law’s enforcement. The state appealed, and the Kansas Supreme Court in 2019 issued Hodes I, declaring that the state constitution’s right to personal autonomy “allows a woman to make her own decisions regarding her body, health, family formation, and family life — decisions that can include whether to continue a pregnancy.” The court affirmed the injunction and sent the case back to the trial court to consider whether the law survived strict scrutiny.
Strict scrutiny is the most rigorous form of judicial review, requiring a law be struck down unless it furthers a compelling government interest and is the least restrictive way to achieve that interest. In choosing strict scrutiny rather than the more lenient “undue burden” test used by federal courts considering abortion restrictions at the time, the court in Hodes I observed that the federal test was “difficult to understand and apply” and that its exact contours were “murky.” It underscored that strict scrutiny was appropriate whenever a fundamental right was at issue and noted that the more rigorous test had been “applied by a majority of other courts that have determined their state constitutions provide a right to decide whether to continue a pregnancy.”
In 2021, the district court granted summary judgment to the plaintiffs, holding that the law could not survive strict scrutiny.
The state again appealed to the Kansas Supreme Court but did not dispute the district court’s factual findings. Instead, it asked the court to declare that abortion was not a fundamental right and that, therefore, strict scrutiny did not apply at all — in short, it urged the court to overrule Hodes I.
In this month’s opinion, the court declined, rejecting the state’s argument that Hodes I was so clearly erroneous that it fell under an exception to the “law of the case” doctrine, which prohibits re-litigating the same issue in the same case.
“We acknowledge the makeup of this court has changed since our last decision,” the court wrote. “But even a subsequent court’s disagreement with an earlier court’s reasoning or conclusion does not invoke by itself an exception.”
The court agreed with the lower court’s holding that the law was not narrowly tailored to its asserted ends — namely, promoting respect for the dignity of human life and regulating the medical profession.
As to the first interest, the court pointed out that the state claimed dilation and evacuation was “particularly barbaric” but offered no evidence to distinguish the procedure from other forms of abortion, on which the law is silent. This “underinclusivity,” the court wrote, “reveals something constitutionally offensive: that the true interest animating the government’s action is likely illegitimate.”
The court next noted that there was evidence the law “harms the integrity of the medical profession” — thus undermining the state’s second stated interest — “because it prohibits doctors from offering a safe and common method of abortion with no patient benefit and will force physicians to administer more dangerous procedures.”
In a concurrence, Justice Evelyn Wilson wrote that she would have struck down the law as unconstitutionally vague. Wilson said the exceptions to the prohibition on the procedure — where it is “necessary to preserve the pregnant woman’s life” or to “prevent a substantial and irreversible physical impairment of a major bodily function of the pregnant woman” — were not sufficiently clear, “leaving a doctor vulnerable to criminal culpability.”
Justice Caleb Stegall dissented, as he did in Hodes I, asserting that the state constitution does not include a right to abortion in its “text or original public meaning.”
In a second opinion issued alongside the dilation and evacuation case, the Kansas high court applied strict scrutiny to strike down more onerous licensing requirements for physicians who provide abortions than those required for other providers.
In August 2022, Kansas voters rejected a proposed constitutional amendment that would have removed the state right to abortion. The vote was the first of many referenda on abortion-related state constitutional amendments across the country in the two years since the U.S. Supreme Court overturned federal abortion rights in Dobbs v. Jackson Women’s Health Organization. Since then, voters in Kentucky and Montana have also defeated anti-abortion amendments, while voters in California, Michigan, Ohio, and Vermont have enshrined abortion rights in their state constitutions. This fall, abortion could be on the ballot in as many as 11 states.
Julia R. Livingston is an attorney in private practice. Her pro bono practice includes working as a case manager for the New York Abortion Access Fund.
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