Kansas Supreme Court To Rule On Dismemberment Ban In Important Abortion Case

November 2, 2017 | Published first in The Federalist

Two abortionists in Kansas are trying to expand a legal strategy that seeks to discover rights to abortion inside state constitutions, not just the U.S. Constitution.

As early as tomorrow, the Kansas Supreme Court could issue a decision in an important but widely ignored case, Hodes & Nauser v. Schmidt. The named plaintiffs in the case, Herbert Hodes and his daughter Traci Nauser, are two late-term abortionists who sued Kansas’ Attorney General Derek Schmidt following the state’s passage of the Unborn Child Protection from Dismemberment Abortion Act in 2015.

That law criminalizes abortions performed by dismembering live fetuses and requires doctors to assure “fetal demise” prior to completing a dilation and evacuation abortion, also known as a D&E abortion. A D&E abortion entails a doctor dilating a woman’s cervix, then inserting surgical equipment to grasp and pull the fetus apart, removing the unborn baby piece by piece.

The attack on the Kansas dismemberment ban is but one of four cases pending in the courts. Abortion providers in Alabama challenged that state’s dismemberment ban in federal court, and just one week ago today, district court judge Myron Thompson held the statute violated a woman’s federal constitutional right to an abortion and entered a permanent injunction barring its enforcement. Alabama has 30 days to appeal that decision to the Eleventh Circuit Court of Appeals.

Meanwhile, the Eighth Circuit Court of Appeals recently ordered briefing in Arkansas’s appeal of a lower federal court decision, preliminarily enjoining that state from enforcing its dismemberment ban. And next door in Texas, Attorney General Ken Paxton’s team heads to federal court today when trial begins over the constitutionality of the Lone Star State’s dismemberment abortion ban.

The Kansas Case Is Trying to Generate a State Foothold

Hodes and Nauser’s challenge to the Kansas dismemberment abortion ban differs from these cases in one significant respect: The plaintiffs who challenged Arkansas, Alabama, and Texas’ laws all filed suit in the federal court system and alleged the state statutes violated their federal constitutional right to abortion under Roe v. Wade and its progeny. Conversely, Hodes and Nauser filed suit in the state court system and presented a claim based solely on their rights under Kansas’s constitution—even though the Kansas Supreme Court has never held that the Kansas constitution guarantees a right to abortion.

The abortionists’ litigation tactic was no mere happenstance. Instead, it represents the continuing, and often overlooked, strategy of abortion-rights activists to circumvent the democratic process and seek refuge in the rulings of activist state court judges. Here’s how the Center for Reproductive Rights, an abortion-rights advocacy organization, put it:

Where the state constitution recognizes rights to privacy or gender equality that are more extensive than those recognized in the federal constitution, state constitutional challenges can provide an effective strategy for defending and expanding reproductive rights. . . . Although claims that state constitutions provide greater protection than the federal constitution are not always successful, this strategy remains an important tool for securing reproductive rights in many states, and may become even more important given the uncertainty over whether the U.S. Supreme Court will continue to weaken the protections afforded by the federal constitution.

To date, according to NARAL Pro-Choice America, “15 states’ constitutions provide greater protection of a woman’s right to choose than does the federal constitution.” For example, when abortion activists challenged a Montana law prohibiting physician assistants from performing abortions, the U.S. Supreme Court upheld that law, rejecting a federal constitutional challenge, while the Montana Supreme Court struck the law, concluding it violated the Montana constitution.

While the Kansas Supreme Court could overturn the appellate court decision and uphold the legislative ban on dismemberment abortions, the composition of that seven-justice court makes that outcome unlikely. Former Kansas Gov. Kathleen Sebelius, an abortion-rights supporter, appointed four of the justices—enough to declare by fiat that abortion (but not life) is an inalienable natural right.

Should a majority of the Kansas Supreme Court follow this predictable course and invent a state constitutional right to abortion, it would decimate the will of the people, who have consistently elected one of the most pro-life and pro-active state legislatures in this country. Sadly, in this case, it would not just be democracy that dies in the dark.