Topeka — The Kansas Supreme Court’s ruling on April 26 discovering a “right to abortion” in the 159-year-old Kansas Constitution was called “shocking” and “an exercise in creative writing” by Archbishop Joseph Naumann of the Archdiocese of Kansas City. The state high court’s 6-1 ruling in Hodes & Nauser v. Derek Schmidt comes after a two-year deliberation of an appeal of a Kansas Court of Appeals ruling.
A temporary injunction against the 2015 law that prohibited dismemberment abortions, also known as the dilation and evacuation abortion procedure, had been appealed. The Kansas Court of Appeals, however, split 7-7 on its ruling, leaving upheld a lower court’s temporary injunction against the implementation of the law. After another appeal, the case then went to the state’s high court. Governor Sam Brownback — who hailed it at the time as a significant piece of pro-life legislation — signed SB 95, also known as “The Kansas Unborn Child Protection from Dismemberment Abortion Act.”
The law never took effect because of legal challenges. Abortion providers Herbert C. Hodes, M.D., and Traci Lynn Nauser, M.D., of the Center for Women’s Health at 4840 College Blvd., Overland Park, were the plaintiffs in the case. Kansas Attorney General Derek Schmidt, who defended the state law, said, “the far-reaching implications of the court’s decision are breathtaking.” Further, he said, “Wholly uninhibited by traditional judicial restraint, the court’s sweeping and voluminous language foreshadows an ever- expanding role for Kansas courts in public policy questions that ... were reserved for Kansans to settle through the democratic process.”
The bishops of Kansas called the ruling “a grotesque caricature of emancipation.” “There is no way to sanitize the barbaric procedure defended by the court,” said Chuck Weber, the executive director of the Kansas Catholic Conference, quoting from the bishops’ statement. “The issue under review — live dismemberment abortion — is a most excruciating death. The nonanesthetized severing of a living child’s arms and legs and subsequent removal of the body is beyond our comprehension.
Legally disguised as health care, this procedure kills an average of twelve children each week in Kansas.” The state’s high court majority based its ruling on an interpretation of Section 1 of the Kansas Constitutional Bill of Rights, which holds that all persons are “possessed of equal and inalienable natural rights, among which are life liberty, and the pursuit of happiness.” In a press release, the court “concluded the drafters and ratifiers meant for Section 1 to protect every person’s right to personal autonomy,” and, further, “this right to personal autonomy is fundamental and governmental regulation of abortion is constitutional only if it passes a test of strict scrutiny.
Passing this test requires a compelling governmental interest and government action that is narrowly tailored to that interest.” “The court’s claim of a right to abortion lying hidden in the Kansas Constitution for more than 150 years is absurd,” said Archbishop Naumann, who is also the chair of the U.S. Conference of Catholic Bishops’ (USCCB) Committee on Pro-Life Activities.
The court’s ruling cannot be appealed, so the only way it can be overturned is with an amendment to the Kansas Constitution. “The immediate priority for all Kansans concerned with protecting the lives of unborn children, as well as pregnant women, from an unscrupulous abortion industry is to pass a state constitutional amendment aimed at making it impossible for future courts to contort the Kansas Constitution in an effort to claim it contains a right to abortion,” said Archbishop Naumann.