Hodes & Nauser, MDs, P.A. v. Schmidt

No. 114,153
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
HODES & NAUSER, MDS, P.A.;
HERBERT C. HODES, M.D.; and
TRACI LYNN NAUSER, M.D.,
Appellees,
v.
DEREK SCHMIDT,
in His Official Capacity as
Attorney General of the State of Kansas; and
STEPHEN M. HOWE,
in His Official Capacity as
District Attorney for Johnson County,
Appellants.
MEMORANDUM OPINION
Appeal from Shawnee District Court; LARRY D. HENDRICKS, judge. Opinion filed January 22,
2016. Affirmed by an equally divided court.
Stephen R. McAllister, solicitor general, Shon D. Qualseth, and Sarah E. Warner, of Thompson
Ramsdell Qualseth & Warner, P.A., of Lawrence, Jeffrey A. Chanay, chief deputy attorney general, and
Dennis D. Depew, deputy attorney general, for appellants.
Erin Thompson, of Thompson Law Firm, LLC, of Wichita, Robert V. Eye and Brett A. Jarmer, of
Robert V. Eye Law Office, LLC, of Lawrence, Teresa A. Woody, of The Woody Law Firm PC, of Kansas
City, Missouri, and Janet Crepps, Genevieve Scott, and Zoe Levine, of Center for Reproductive Rights, of
New York, New York, for appellees.
Kevin M. Smith, of Law Offices of Kevin M. Smith, P.A., of Wichita, and Paul Benjamin Linton,
of Thomas More Society, of Northbrook, Illinois, for amicus curiae The Family Research Council.
Frederick J. Patton II, of Topeka, for amicus curiae Kansans for Life, Inc.
Mark P. Johnson, of Dentons US LLP, of Kansas City, Missouri, for amici curiae Kansas
Physicians.
Don Saxton, of Saxton Law Firm LLC, of Kansas City, Missouri, and Kimberly A. Parker, Skye
L. Perryman, Brittani Kirkpatrick Ivey, and Souvik Saha, of Wilmer Cutler Pickering Hale and Dorr LLP,
of Washington, D.C., for amicus curiae American College of Obstetricians and Gynecologists.
EN BANC
LEBEN, J.: The 2015 Kansas Legislature passed a bill, signed into law by Governor
Sam Brownback, that outlawed the most common method of second-trimester abortions.
Before the law's July 1 effective date, a state district court entered a temporary injunction
that kept the law from taking effect.
The district court based its order on provisions of the Kansas Constitution Bill of
Rights, concluding that they provide the same right to abortion as the Due Process Clause
of the Fourteenth Amendment to the United States Constitution. The State has appealed,
contending that there is no abortion right under the Kansas Constitution.
But the Kansas Supreme Court has said for nearly a century that sections 1 and 2
of the Kansas Constitution Bill of Rights have "much the same effect" as the Due Process
and Equal Protection Clauses of the United States Constitution. State v. Limon, 280 Kan.
275, 283, 122 P.3d 22 (2005); State ex rel. Stephan v. Parrish, 257 Kan. 294, Syl. ¶ 5,
891 P.2d 445 (1995); State ex rel. Tomasic v. Kansas City, Kansas Port Authority, 230
Kan. 404, 426, 636 P.2d 760 (1981); Manzanares v. Bell, 214 Kan. 589, 602, 522 P.2d
1291 (1974); Henry v. Bauder, 213 Kan. 751, 752-53, 518 P.2d 362 (1974); Tri-State
Hotel Co. v. Londerholm, 195 Kan. 748, Syl. ¶ 1, 408 P.2d 877 (1965); State v. Wilson,
101 Kan. 789, 795-96, 168 Pac. 679 (1917). And a right to abortion has been recognized
under the Due Process Clause of the Fourteenth Amendment to the United States
Constitution for more than 40 years. Roe v. Wade, 410 U.S. 113, 153, 93 S. Ct. 705, 35 L.
2
Ed. 2d 147 (1973). We therefore conclude that sections 1 and 2 of the Kansas
Constitution Bill of Rights provide the same protection for abortion rights as the Due
Process Clause of the Fourteenth Amendment to the United States Constitution; the
district court correctly determined that the Kansas Constitution Bill of Rights provides a
right to abortion.
The State also argues that even if Kansas had such a right, the new Kansas statute
would not unduly burden women seeking to exercise that right. But the United States
Supreme Court held in Stenberg v. Carhart, 530 U.S. 914, 938, 945-46, 120 S. Ct. 2597,
147 L. Ed. 2d 743 (2000), that a Nebraska statute that outlawed both the type of abortion
at issue here and another less-common procedure unduly burdened abortion rights and
was unconstitutional. Kansas already bans the less-common procedure, so the new law
would put Kansas in the same position as Nebraska before its statute was found to be
unconstitutional. Based on Stenberg, there is a substantial likelihood that the Kansas
statute is unconstitutional, so the district court properly entered a temporary injunction.
FACTUAL AND PROCEDURAL BACKGROUND
The legislature called the law at issue here the Kansas Unborn Child Protection
from Dismemberment Abortion Act. With limited exceptions, the statute would ban what
the medical profession calls a "dilation and evacuation" or "D & E" abortion, the primary
method for second-trimester abortions in the United States. K.S.A. 2015 Supp. 65-6741
et seq.; L. 2015, ch. 22. The plaintiffs, two board-certified obstetrician-gynecologists and
their medical practice, seek to continue performing D & E abortions. The plaintiffs
perform abortions only up to 21.6 weeks from the woman's last menstrual period, which
means that the fetus is not yet viable, i.e., able to survive outside the womb. See Alpha
Med. Clinic v. Anderson, 280 Kan. 903, Syl. ¶ 4, 128 P.3d 364 (2006).
3
Because we are reviewing a law that seeks to ban an abortion method and because
the State defends that law in part by arguing that alternative methods are available, we
must describe and discuss abortion procedures. Faced with the same task, Justice Stephen
G. Breyer provided these introductory comments, with which we agree:
"Considering the fact that [these] procedures seek to terminate a potential human life, our
discussion may seem clinically cold or callous to some, perhaps horrifying to others.
There is no alternative way, however, to acquaint the reader with the technical
distinctions among different abortion methods and related factual matters, upon which the
outcome of this case depends." Stenberg, 530 U.S. at 923.
We will start by describing two abortion procedures—D & E and a variant called
intact D & E, both described in the Supreme Court's Stenberg opinion. D & E is the most
common method, used in about 95% of second-trimester abortions (about 10% of all
abortions performed in the United States are done in the second trimester). In this
procedure, the physician dilates the cervix and uses surgical instruments to remove the
fetus by pulling it "through the cervix into the birth canal." 530 U.S. at 925. Put bluntly,
if the fetus is too large to fit through the cervix, friction against the cervix causes the fetus
to tear apart. Performing this D & E procedure on a living, though nonviable, fetus (as
commonly done) would be banned by the Kansas statute at issue here. K.S.A. 2015 Supp.
65-6742(b)(1); K.S.A. 2015 Supp. 65-6743(a); L. 2015, ch. 22, secs. 2-3.
Although D & E is quite safe for the woman, it does carry some risks, like any
medical procedure. For example, as the fetus tears, sharp bone fragments can cause
accidental uterine perforations. In addition, the more times an instrument passes into the
uterus, the greater the risk of infections or perforations caused by the instrument. To
reduce these risks, some doctors at one time preferred using the intact D & E procedure.
In that method, the doctor pulls the fetus through the cervix intact by collapsing the skull.
Kansas has banned the intact D & E abortion procedure (also called a partial-birth
4
abortion) since 1998. See K.S.A. 2014 Supp. 65-6721; L. 1998, ch. 142, sec. 18; L. 2011,
ch. 91, sec. 30.
As part of its argument that the new Kansas statute does not violate any abortion
right a woman might have, the State contends that the statute does not unduly burden that
right—or make it too difficult to exercise—since alternative abortion methods would still
be available. More specifically, the State has suggested three alternatives to the standard
D & E procedure: labor-induction abortion, inducing fetal demise with digoxin injections,
and inducing fetal demise by cutting the umbilical cord (also known as transection). A
labor-induction abortion uses a combination of drugs that induce labor and delivery of the
nonviable fetus. See Planned Parenthood of Southwest Ohio Region v. DeWine, 696 F.3d
490, 494-95 (6th Cir. 2012). The other options (inducing fetal demise by digoxin or
transection) would add additional procedures onto the D & E abortion so that fetal demise
occurs before the fetus is removed. If the fetus is no longer alive when the doctor
proceeds with the D & E procedure, that would not violate the new Kansas statute, which
forbids dismemberment only when it involves "a living unborn child." K.S.A. 2015 Supp.
65-6742(b)(1); L. 2015, ch. 22, sec. 2.
This case has reached us after the entry of a temporary injunction, which often
must be considered in a short time period. That was true here: the statute was signed by
the Governor on April 7, 2015; the case was filed on June 1; and the district court had to
consider whether to prevent the statute from taking effect on July 1. "The purpose of a
preliminary injunction is merely to preserve the relative positions of the parties until a
trial on the merits can be held." University of Texas v. Camenisch, 451 U.S. 390, 395, 101
S. Ct. 1830, 68 L. Ed. 2d 175 (1981); see also Steffes v. City of Lawrence, 284 Kan. 380,
394, 160 P.3d 843 (2007). Accordingly, requests for temporary injunction are often
considered based on written testimony submitted by the parties. See K.S.A. 60-902. Here,
the plaintiffs submitted written testimony from three physicians: Dr. Traci Lynn Nauser,
one of the plaintiffs and a board-certified obstetrician-gynecologist; Dr. Anne Davis, a
5
board-certified obstetrician-gynecologist and an associate professor at the Columbia
University Medical Center in New York City; and Dr. David Orentlicher, who has both a
medical degree and a law degree and serves as both a professor of law at the Robert H.
McKinney School of Law at Indiana University and an adjunct professor of medicine at
the Indiana University School of Medicine.
The State did not submit any written testimony to the district court, and it did not
seek to present any witnesses at the hearing held by the district court on the plaintiffs'
request for a temporary injunction. Instead, the State cited some articles from medical
literature in its brief to the district court; the State cites some of those again on appeal.
It does not appear, however, that the State has properly challenged any of the
district court's factual findings in this appeal. The State's appellate brief raises two legal
issues but does not claim that the district court's factual findings are unsupported by
substantial evidence. Although the State's reply brief purports to challenge some of the
district court's factual findings (by citing medical literature referenced in its district court
brief), new issues cannot be raised in a reply brief. See State v. McCullough, 293 Kan.
970, 984-85, 270 P.3d 1142 (2012).
Even if the State had properly challenged the district court's factual findings in this
appeal, we would reject that challenge. "In cases in which a trial court's decision
regarding an injunction is based on disputed facts, . . . we . . . look at whether the factual
basis for its decision is supported by sufficient evidence." State Bd. of Nursing v. Ruebke,
259 Kan. 599, 611, 913 P.2d 142 (1996). The district court's factual findings are fully
supported by the written testimony submitted by the plaintiffs, and those factual findings
provide sufficient support to consider the plaintiffs' legal claims. See University of Texas,
451 U.S. at 395.
6
We therefore accept these factual findings made by the district court for the
purposes of our present review:
"Senate Bill 95 prohibits the performance on a living fetus of an abortion
procedure described in the Act as 'dismemberment abortion,' defined as a procedure done:
with the purpose of causing the death of an unborn child, knowingly
dismembering a living unborn child and extracting such unborn child one
piece at a time from the uterus through the use of clamps, grasping
forceps, tongs, scissors or similar instruments that, through the
convergence of two rigid levers, slice, crush or grasp a portion of the
unborn child's body in order to cut or rip it off.
S.B. 95 § 2(b)(1) [since codified at K.S.A. 2015 Supp. 65-6742(b)(1)].
"Violation of the ban is a criminal offense. . . .
"Although 'dismemberment abortion' is not a medical term, the parties agree and
the Court finds that the Act prohibits Dilation & Evacuation ('D & E') procedures. The D
& E procedure is used for 95% of the abortions done in the second trimester.
"The plaintiffs in this case are Hodes & Nauser, M.D.s, PA; Dr. Herbert C.
Hodes; and Dr. Traci Lynn Nauser, on behalf of themselves and their patients. The
Plaintiff physicians are board-certified obstetrician-gynecologists who practice in
Overland Park, Kansas. They provide pre-viability second-trimester abortions using D &
E procedures. The Plaintiffs do not induce fetal demise prior to their D & E procedures.
....
"Defendants propose three alternative procedures to D & E: labor induction,
induction of fetal demise using an injection, and induction of fetal demise using umbilical
cord transection.
"Labor induction is used in approximately 2% of second-trimester abortion
procedures. It requires an inpatient labor process in a hospital that will last between 5-6
7
hours up to 2-3 days, includes increased risks of infection when compared to D & E, and
is medically contraindicated for some women.
"There is no established safety benefit to inducing demise prior to a D & E
procedure.
"An injection of digoxin may be administered via either transabdominal or
transvaginal injection. Injections to induce demise using digoxin prior to D & E are not
practiced prior to 18 weeks gestation, and the impact of subsequent doses of digoxin,
required in cases where a first dose is not effective, is virtually unstudied. Research
studies have shown increased risks of nausea, vomiting, extramural delivery, and
hospitalization.
"Umbilical cord transection prior to a D & E is not possible in every case.
Requiring transection prior to a D & E increases procedure time, makes the procedure
more complex, and increases risks of pain, infection, uterine perforation, and bleeding.
The use of transection to induce fetal demise has only been discussed in a single
retrospective study, the authors of which note that its main limitation is 'a potential lack
of generalizability.'"
For the purpose of considering whether the district court properly entered its
temporary injunction, we will now proceed to analyze the legal issues based on these
factual findings. We recognize that the district court may well make different factual
findings after each side presents its full evidence at trial. Our analysis at this stage of the
litigation is therefore necessarily tentative, as it is based on the tentative factual findings
now in place.
ANALYSIS
The parties agree that whether the Kansas Constitution recognizes any right to
abortion is a purely legal question that we must answer to resolve this appeal. That
question and two others guide our analysis.
8
The central issue we must decide is whether the Kansas Constitution provides any
abortion rights. If not, then this new Kansas statute should be allowed to go into effect, as
the plaintiffs have raised only Kansas constitutional rights as the basis for an injunction.
If the Kansas Constitution does provide some abortion rights, we must then
answer two other questions. First, we would have to determine the standard we would
apply to decide whether those rights have been violated. That also is a purely legal
question. Next, we would apply that standard to the facts as found by the district court to
determine whether this new statute would violate those rights. In doing so, we would also
take into account the standards that apply when a plaintiff seeks injunctive relief (i.e., a
court order commanding or preventing some action, here preventing the new law from
taking effect).
To obtain an injunction—even a temporary one—a plaintiff must make five
showings to the court: (1) a substantial likelihood of eventually prevailing on the merits;
(2) a reasonable probability that irreparable injury would take place without an
injunction; (3) the lack of an adequate legal remedy (such as damages); (4) that the threat
of injury outweighs whatever harm the injunction may cause the opposing party; and
(5) that the injunction will not be against the public interest. Downtown Bar and Grill v.
State, 294 Kan. 188, 191, 273 P.3d 709 (2012). In this case, however, at least for the
purposes of this appeal, the State has focused exclusively on the first of those required
showings—substantial likelihood of success on the merits. The State does so by arguing
that the Kansas Constitution does not provide the right to an abortion and that even if it
did, and even if that right brings into play the same standards now applied under the
United States Constitution, the new statute would not violate those standards and
accordingly should still be allowed to take effect. We therefore focus on whether there is
an abortion right under the Kansas Constitution and, if so, whether the new statute would
violate that right.
9
We review the grant or denial of a temporary injunction only for an abuse of
discretion. Downtown Bar and Grill, 294 Kan. at 191. Even though that is often a quite
deferential review, a court abuses its discretion if it bases its ruling on a legal error.
Kansas City Power & Light Co. v. Strong, 302 Kan. 712, 729, 356 P.3d 1064 (2015).
And our review of legal issues must be independent, without any required deference to
the district court. Downtown Bar and Grill, 294 Kan. at 191-92. Thus, our primary role in
this appeal is to answer the purely legal questions we have identified concerning whether
the plaintiffs are likely to succeed on their claim that the statute violates the Kansas
Constitution.
Under Established Kansas Supreme Court Caselaw, the Kansas Constitution Recognizes
a Right to Abortion.
So we begin with whether the Kansas Constitution recognizes any right to
abortion. On this question, we are guided primarily by two sources—the text of the
sections of the Kansas Constitution cited by the plaintiffs and the caselaw of the Kansas
Supreme Court interpreting those provisions.
The plaintiffs rely on sections 1 and 2 of the Kansas Constitution Bill of Rights.
Section 1 provides: "All men are possessed of equal and inalienable natural rights, among
which are life, liberty, and the pursuit of happiness." Section 2 provides: "All political
power is inherent in the people, and all free governments are founded on their authority,
and are instituted for their equal protection and benefit. . . ."
Of course, we are not the first to consider these provisions—the Kansas Supreme
Court has done so on many occasions; it is the final arbiter when interpreting the Kansas
Constitution, including determining whether a statute violates that constitution. Harris v.
Shanahan, 192 Kan. 183, 206-07, 387 P.2d 771 (1963). And as we noted in the
introduction to this opinion, the Kansas Supreme Court has said in seven different cases
10
stretching from 1917 through 2005 that it gives these Kansas constitutional provisions
"much the same effect" as the Due Process and Equal Protection Clauses of the
Fourteenth Amendment. Limon, 280 Kan. at 283; Parrish, 257 Kan. 294, Syl. ¶ 5; Kansas
City, 230 Kan. at 426; Manzanares, 214 Kan. at 602; Henry, 213 Kan. at 752-53; Tri-
State Hotel Co., 195 Kan. 748, Syl. ¶ 1; Wilson, 101 Kan. at 795-96. More recently, our
Supreme Court noted that "at least for the past half-century, [it] has generally adopted the
United States Supreme Court's interpretation of corresponding federal constitutional
provisions as the meaning of the Kansas Constitution, notwithstanding any textual,
historical, or jurisprudential differences." State v. Lawson, 296 Kan. 1084, 1091, 297
P.3d 1164 (2013).
The State argues that the words "due process" do not appear in sections 1 and 2 of
the Kansas Constitution Bill of Rights, and that's obviously true. Even so, not only has
our Supreme Court interpreted sections 1 and 2 to provide a due-process right, but section
1 contains language—the right to "liberty"—that fits squarely within both the federal
abortion-rights cases and the broader substantive-due-process caselaw within which the
federal constitutional right to abortion has taken form.
Both the Fifth Amendment (applicable to the federal government) and the
Fourteenth Amendment (applicable to the states) to the United States Constitution
provide that no person shall be deprived "of life, liberty, or property, without due process
of law." These due-process provisions have long been interpreted not only to require that
the government provide fair procedures when key rights are at stake but also to protect
some key substantive rights from government interference—thus the term substantive due
process.
In Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 112 S. Ct.
2791, 120 L. Ed. 2d 674 (1992), an abortion-rights case, the Court provided an overview
11
of these substantive-due-process rights. It explained that the right to abortion was derived
from the word "liberty," just like the Court's other substantive-due-process caselaw:
"Constitutional protection of the woman's decision to terminate her pregnancy
derives from the Due Process Clause of the Fourteenth Amendment. It declares that no
State shall 'deprive any person of life, liberty, or property, without due process of law.'
The controlling word in the cases before us is 'liberty.' Although a literal reading of the
Clause might suggest that it governs only the procedures by which a State may deprive
persons of liberty, for at least 105 years, since Mugler v. Kansas, 123 U.S. 623, 660-661
(1887), the Clause has been understood to contain a substantive component as well, one
'barring certain government actions regardless of the fairness of the procedures used to
implement them.' Daniels v. Williams, 474 U.S. 327, 331 (1986). As Justice Brandeis
(joined by Justice Holmes) observed, '[d]espite arguments to the contrary which had
seemed to me persuasive, it is settled that the due process clause of the Fourteenth
Amendment applies to matters of substantive law as well as to matters of procedure. Thus
all fundamental rights comprised within the term liberty are protected by the Federal
Constitution from invasion by the States.' Whitney v. California, 274 U.S. 357, 373
(1927) (concurring opinion)." (Emphasis added.) Casey, 505 U.S. at 846-47.
In the first case the Court referred to, the 1887 case of Mugler v. Kansas, the Court
considered whether Kansas statutes that made it a crime to manufacture intoxicating
liquor violated a right to liberty that would allow a person to make liquor for his or her
own use. The Court said there was a substantive limit to legislation that could be enacted
for public health, morals, or safety: "It does not at all follow that every statute enacted
ostensibly for the promotion of these ends is to be accepted as a legitimate exertion of the
police powers of the State. There are, of necessity, limits beyond which legislation cannot
rightfully go." 123 U.S. at 661. In Mugler, however, the State of Kansas had not gone
beyond appropriate limits, as the Court noted the strong need to protect "the community
against the evils which confessedly result from the excessive use of ardent spirits." 123
U.S. at 662.
12
In the early twentieth century, the United States Supreme Court found that a
number of economic and social-welfare regulations unconstitutionally interfered with the
protected interest in liberty. See 2 Rotunda & Nowak, Treatise on Constitutional Law:
Substance and Procedure §§ 15.2-15.4 (5th ed. 2012); Barron & Dienes, Constitutional
Law in a Nutshell, pp. 216-25 (8th ed. 2013). The most famous of these cases was
Lochner v. New York, 198 U.S. 45, 53, 64, 25 S. Ct. 539, 49 L. Ed. 937 (1905), where the
court invalidated a state law limiting bakery employees to no more than 10 hours of work
per day and 60 hours per week, concluding that "[t]he right to purchase or to sell labor is
part of the liberty protected" by the Fourteenth Amendment's Due Process Clause.
Later, beginning with Nebbia v. New York, 291 U.S. 502, 538-39, 54 S. Ct. 505,
78 L. Ed. 940 (1934), which upheld New York's minimum-price law for milk, the Court
began a retreat from its close scrutiny of economic regulations. Today, unless equal-
protection principles or fundamental rights are at stake, courts apply a much less rigorous
test, approving state economic or social-welfare regulations so long as they are rationally
related to a legitimate governmental interest. E.g., Williamson v. Lee Optical Co., 348
U.S. 483, 486-88, 75 S. Ct. 461, 99 L. Ed. 563 (1955) (upholding Oklahoma regulation of
opticians where regulation might have been "a rational way to correct" a problem);
Manzanares v. Bell, 214 Kan. 589, Syl. ¶¶ 7-8, 522 P.2d 1291 (1974) (stating that
whether the Kansas no-fault insurance law "violates the due process clause is determined
by whether its provisions bear a reasonable relation to a permissible legislative
objective"; applying the Due Process Clauses in both United States and Kansas
Constitutions); see State ex rel. Schneider v. Liggett, 223 Kan. 610, 613-15, 576 P.2d 221(1978); Rotunda & Nowak at § 15.4(e); Barron & Dienes, pp. 221-25.
Although substantive due process is no longer used to overturn any reasonable
economic regulation, it has become the basis for constitutional rights related to privacy,
marriage, family, and procreation—none of which are specifically mentioned in the
United States Constitution. The Court has recognized the right to the use of
13
contraceptives in Griswold v. Connecticut, 381 U.S. 479, 481-85, 85 S. Ct. 1678, 14 L.
Ed. 2d 510 (1965), the right to interracial marriage in Loving v. Virginia, 388 U.S. 1, 12,
87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967), the right to live with one's extended family,
notwithstanding a city's zoning laws in Moore v. East Cleveland, 431 U.S. 494, 503-06,
97 S. Ct. 1932, 52 L. Ed. 2d 531 (1977) (plurality opinion), the right to refuse medical
treatment in Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 278, 110 S. Ct.
2841, 111 L. Ed. 2d 224 (1990), the right of a fit parent to raise his or her children
without state interference in Troxel v. Granville, 530 U.S. 57, 65-66, 68-69, 120 S. Ct.
2054, 147 L. Ed. 2d 49 (2000) (plurality opinion), and, most recently, the right of a same-
sex couple to marry in Obergefell v. Hodges, 576 U.S. ___, 135 S. Ct. 2584, 2604-05,
192 L. Ed. 2d 609 (2015).
And, of course, the Court first recognized a right to abortion in Roe v. Wade, 410
U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). The Roe Court discussed two bases for
its conclusion that a right to privacy protected certain decisions a woman would make in
terminating a pregnancy, but it relied primarily on the liberty interest found in the
Fourteenth Amendment:
"This right of privacy, whether it be founded in the Fourteenth Amendment's
concept of personal liberty and restrictions upon state action, as we feel it is, or, as the
District Court determined, in the Ninth Amendment's reservation of rights to the people,
is broad enough to encompass a woman's decision whether or not to terminate her
pregnancy." (Emphasis added.) 410 U.S. at 153.
Later cases have squarely tied the right to abortion to this liberty interest: The
Casey opinion does so most clearly. In addition to the quotation we have already included
in our opinion ("The controlling word in the cases before us is 'liberty.'" 505 U.S. at 846),
the Court's opinion squarely relied on a liberty interest under the Due Process Clause:
14
"It is a promise of the Constitution that there is a realm of personal liberty which the
government may not enter. . . .
....
"Our law affords constitutional protection to personal decisions relating to
marriage, procreation, contraception, family relationships, child rearing, and education.
. . . These matters, involving the most intimate and personal choices a person may make
in a lifetime, choices central to personal dignity and autonomy, are central to the liberty
protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's
own concept of existence, of meaning, of the universe, and of the mystery of human life.
Beliefs about these matters could not define the attributes of personhood were they
formed under compulsion of the State." 505 U.S. at 847-51.
The State argues that none of this matters because "[n]o Kansas court has found
that the Kansas Constitution includes a right of substantive due process . . . ." On that
point, the State is simply wrong.
One year before the Lochner decision, in Brick Co. v. Perry, 69 Kan. 297, 76 Pac.
848 (1904), our Supreme Court struck down a Kansas statute making it unlawful to
prevent employees from joining or belonging to a labor union. The court first noted that
the defendant had claimed the law in question violated both the Fourteenth Amendment
to the United States Constitution and section 1 of the Kansas Constitution Bill of Rights.
69 Kan. at 298-99. The court said there had been "an epidemic of this class of legislation"
in the past two decades and that such laws had "been universally held to be a denial of
rights guaranteed by the provisions of the national and state constitutions." 69 Kan. at
301-02. The court said that the statute was unconstitutional, 69 Kan. at 305, because the
employer was "at liberty to contract for the services of persons in any manner that is
satisfactory to both" and that "[n]o legislative restrictions can be imposed on the lawful
exercise of these rights." 69 Kan. at 301.
15
Other Kansas Supreme Court decisions have also measured Kansas statutes
against the substantive-due-process standards found in sections 1 and 2 of the Kansas
Constitution Bill of Rights.
In State v. Wilson, 101 Kan. 789, 168 Pac. 679 (1917), the court upheld a statute
limiting the use of trading stamps without payment of a license tax. The court specifically
noted that it was applying sections 1 and 2 of the Kansas Constitution, which it said "are
given much the same effect as the clauses of the fourteenth amendment relating to due
process of law and equal protection." 101 Kan. at 795-96. The court said that more than
50 court decisions had found trading-stamp laws invalid but that the United States
Supreme Court had very recently upheld them in two cases. Relying upon the United
States Supreme Court's interpretation of the Fourteenth Amendment, our court
concluded: "We acquiesce in the view of the federal supreme court that there is sufficient
room for a reasonable difference of opinion as to whether the 'premium system' [used in
trading stamps] is attended with evil consequences to the public, to place the affirmative
decision of that question by the legislature beyond the reach of the courts . . . ." 101 Kan.
at 800.
More recently, in Manzanares, 214 Kan. 589, the court considered the
constitutionality of the Kansas no-fault insurance law. The court noted that "the Kansas
Constitution's counterpart of the Fourteenth Amendment is Sections 1 and 2 of our Bill of
Rights," 214 Kan. at 610, and the court concluded that the provisions of the law did "not
violate the due process clause of either the Fourteenth Amendment to the Constitution of
the United States or Sections 1 and 2 of the Bill of Rights of the Kansas Constitution."
214 Kan. 589, Syl. ¶ 8.
In sum, the Kansas Supreme Court has explicitly recognized a substantive-due-
process right under the Kansas Constitution and has applied a substantive-due-process
legal standard equivalent to the one applicable under the Fourteenth Amendment at the
16
time of these Kansas decisions. See also Gilbert v. Mathews, 186 Kan. 672, 677, 686, 352
P.2d 58 (1960) (striking down a statute regulating the sale of new goods at public auction
by itinerant sellers as a violation of the federal and state constitutions, citing section 1 of
the Kansas Constitution Bill of Rights and the Fourteenth Amendment as the governing
authorities). What the Kansas Supreme Court has not yet done is apply substantive-due-
process principles in a case involving personal or fundamental rights, like the right to
contraception, the right to marry, or the right to abortion.
As far as we are aware, the court has only been asked to do so once—in Alpha
Med. Clinic v. Anderson, 280 Kan. 903, 128 P.3d 364 (2006), a case in which the court
had to balance abortion rights and privacy interests against governmental investigatory
powers. The Alpha Med. Clinic court noted the federal constitutional right to obtain an
abortion without the government imposing an undue burden on that right. 280 Kan. at
920. The court then responded to a party's request that it also recognize the same right
under the Kansas Constitution, declining to do so since it had already recognized the
federal right:
"We have not previously recognized—and need not recognize in this case despite
petitioners' invitation to do so—that such [abortion] rights also exist under the Kansas
Constitution. But we customarily interpret its provisions to echo federal standards.
[Citations omitted.]" 280 Kan. at 920.
The court's final sentence—noting that it "customarily interpret[s]" Kansas
constitutional provisions "to echo federal standards"—was unnecessary to the Alpha
Med. Clinic decision and certainly is consistent with our understanding of its approach in
substantive-due-process decisions from the early twentieth century to the present. But we
do not recognize a right to abortion under the Kansas Constitution based on that hint from
Alpha Med. Clinic. We do so because the Kansas Supreme Court has consistently
interpreted sections 1 and 2 of the Kansas Constitution Bill of Rights as equivalent to the
17
Due Process and Equal Protection Clauses of the Fourteenth Amendment. Because the
right to abortion is part of the liberty protected by the Due Process Clause to the
Fourteenth Amendment, the Kansas Constitution provides the same right to abortion that
is protected under federal law.
Before we conclude this section of the opinion, we should address one other
argument the State has made against recognizing a right to abortion under sections 1 and
2 of the Kansas Constitution Bill of Rights—that the framers of the Kansas Constitution
(who, we note, were all men) surely did not intend to create an abortion right in 1859,
when the constitution was adopted. That may be true, but it has been recognized since
before Kansas joined the Union that, as a matter of constitutional interpretation, the intent
of the drafters with respect to broadly written rights is not the end of the matter. As Chief
Justice John Marshall said, "[W]e must never forget, that it is a constitution we are
expounding," "a constitution intended to endure for ages to come, and, consequently, to
be adapted to the various crises of human affairs." McCulloch v. State of Maryland, 17
U.S. (4 Wheat.) 316, 407, 415, 4 L. Ed. 579 (1819). So it has been in practice with the
Due Process Clause, where new applications, unforeseen to the drafters, have arisen over
time, like the right to contraception, the right to marry, and the right to abortion. So too
with the prohibition on cruel and unusual punishment, where "evolving standards of
decency" have been recognized under both the United States and Kansas Constitutions.
See Graham v. Florida, 560 U.S. 48, 58, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010); State
v. DeCourcy, 224 Kan. 278, 283, 580 P.2d 86 (1978).
We could go on with other examples, but neither the United States Supreme Court
nor the Kansas Supreme Court has limited its interpretation of broadly worded federal
and state constitutional provisions only to what was initially intended. Just last year, the
United States Supreme Court once again quite clearly embraced this notion of
constitutional interpretation in its Obergefell opinion, which determined that there was a
right under the Due Process Clause to same-sex marriage:
18
"The nature of injustice is that we may not always see it in our own times. The
generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did
not presume to know the extent of freedom in all of its dimensions, and so they entrusted
to future generations a charter protecting the right of all persons to enjoy liberty as we
learn its meaning. When new insight reveals discord between the Constitution's central
protections and a received legal stricture, a claim to liberty must be addressed." 135 S. Ct.
at 2598.
The Kansas Supreme Court has made much the same point:
 "We are aware of the fact that constitutions and their interpretation should march
abreast of the times. Words must yield to the pressure of changed social
conditions, more enlightened ideals, advanced business organizations and the
general march of progress." Markham v. Cornell, 136 Kan. 884, 891, 18 P.2d 158(1933).
 "Until repealed or amended by the legislature, statutes stand immovable;
constitutions march, aided by judicial interpretation necessarily employed to give
full force and effect to the rights and privileges guaranteed by their general terms."
Postlethwaite v. Edson, 102 Kan. 619, 643, 171 Pac. 769 (1918).
See also Gannon v. State, 298 Kan. 1107, 1155-56, 319 P.3d 1196 (2014) (noting that
courts are regularly called upon to define and apply imprecise constitutional standards
and that the understanding of these general standards—such as "cruel and unusual" or
"equal protection"—may be refined over time).
From all of this, we discern a simple proposition: The rights of Kansas women in
2016 are not limited to those specifically intended by the men who drafted our state's
constitution in 1859.
19
We Apply the Undue-Burden Test Announced in Casey to Determine Whether the Kansas
Constitution's Right to Abortion Has Been Violated.
We next determine what standard we should apply to decide whether this new
Kansas statute violates the abortion right provided under the Kansas Constitution. Since
we have concluded that Kansas would apply the same due-process standards that the
United States Supreme Court applies under the Fourteenth Amendment, we must first
determine what those federal standards are.
Three United States Supreme Court cases are central here: Casey; Stenberg v.
Carhart, 530 U.S. 914, 120 S. Ct. 2597, 147 L. Ed. 2d 743 (2000); and Gonzales v.
Carhart, 550 U.S. 124, 127 S. Ct. 1610, 167 L. Ed. 2d 480 (2007). In Casey, the Court
announced an "undue burden" standard to apply in determining whether an abortion-
rights restriction is constitutional. 505 U.S. at 876-78 (plurality opinion). While that
portion of the Casey opinion was adopted by only three justices (with two others adopting
a more stringent test), a majority of the Court applied the Casey undue-burden test in
Stenberg, 530 U.S. at 921, and Gonzales, 550 U.S. at 146. In addition, our Supreme Court
recognized this as the applicable test in Alpha Med. Clinic. 280 Kan. at 920 (recognizing
"the fundamental right of a pregnant woman to obtain a lawful abortion without
government imposition of an undue burden on that right") (citing Casey). We therefore
apply the undue-burden test here.
An undue-burden finding, as described in Casey, "is a shorthand for the
conclusion that a state regulation has the purpose or effect of placing a substantial
obstacle in the path of a woman seeking an abortion of a nonviable fetus." 505 U.S. at
877. The plaintiffs in our case have primarily argued that the new Kansas statute is
unconstitutional based on its effect. A statute that furthers a valid state interest but "has
the effect of placing a substantial obstacle in the path of a woman's choice cannot be
considered a permissible means of serving its legitimate ends." 505 U.S. at 877.
20
Under the District Court's Factual Findings, the Plaintiffs Have Shown a Substantial
Likelihood That the New Kansas Statute Violates the Kansas Constitution.
So far, we have determined that the Kansas Constitution does recognize an
abortion right and that we should apply the undue-burden standard to determine whether
that right has been violated. We must now determine whether the plaintiffs have made a
sufficient showing that the statute would violate that standard to obtain a temporary
injunction. To do so, the plaintiffs must demonstrate a substantial likelihood that they
will ultimately prevail on this question. Downtown Bar and Grill v. State, 294 Kan. 188,
191, 273 P.3d 709 (2012).
Given the district court's factual findings and the procedural status in which the
case has reached us (a request for temporary injunction), the plaintiffs have made that
showing. We reach this conclusion primarily based on the holdings of Stenberg and
Gonzales.
In Stenberg, the Court found unconstitutional a Nebraska statute that the Court
interpreted as banning both D & E and intact D & E abortions. 530 U.S. at 921-22, 938,
945-46. In Gonzales, the Court upheld a ban on only intact D & E abortions, finding that
this limited ban did not constitute an undue burden and noting that D & E abortion, the
most common type of second-trimester abortion and "'generally the safest method of
abortion during the second trimester,'" remained legal. 550 U.S. at 164 (quoting Carhart
v. Ashcroft, 331 F. Supp. 2d 805, 1031 [D. Neb. 2004]).
Kansas has banned the intact D & E abortion procedure since 1998. See K.S.A.
2014 Supp. 65-6721; L. 1998, ch. 142, sec. 18; L. 2011, ch. 91, sec. 30. By combining
that ban with a new one on the D & E abortion procedure, Kansas has simply attempted
to do in two statutes what the United States Supreme Court held Nebraska could not do in
one—ban both D & E and intact D & E abortions.
21
The State contends, based on Gonzales, that the new Kansas statute is permissible
because reasonable alternative procedures remain available. But the circumstances here
are quite unlike Gonzales. There, the Court considered a ban on an uncommon procedure
and noted that the most common and generally safest abortion method remained
available. Here, the State has done the opposite, banning the most common, safest
procedure and leaving only uncommon and often unstudied options available.
The State has offered three alternatives to the standard D & E procedure: labor-
induced abortion, inducing fetal demise with digoxin injections, and inducing fetal
demise by cutting the umbilical cord (also known as transection). The district court found
that the State did not challenge the basic facts the plaintiffs submitted about these
alternatives. In its reply brief on appeal, the State takes issue with this conclusion and
states that it "cited numerous medical studies and journals to contradict Plaintiffs'
assertions."
As we explained when we set out the district court's factual findings, we must
accept those findings for the purposes of our decision here. This case is before the court
on a temporary injunction, and the only evidence the district court received was written
testimony the plaintiffs submitted from three physicians. Accordingly, it is possible that
the district court will make different factual findings after both sides present their
evidence at trial. In the meantime, we must rule based on the record as it exists. With that
background, we will briefly review each of the alternative procedures the State argues are
available in place of the standard D & E procedure.
First, the State does not dispute the plaintiffs' contention that labor-induction
abortion is used in only 2% of second-trimester abortions in the United States. While the
State notes that labor induction is generally safe and is the preferred method in some
other countries, it hasn't disputed the plaintiffs' assertions that it is not medically
recommended for some women, that it includes an increased risk of infection, and that it
22
requires a hospital stay of anywhere from 5 hours to 3 days. Of course, the woman also
must go through labor.
Second, the State does not dispute that digoxin injections to induce fetal demise
are only rarely used before 18 weeks gestation (while D & E abortions are often used
beginning at 14 weeks). The State also does not dispute that the procedure sometimes
requires multiple injections and that the effect of multiple injections hasn't been studied.
The State acknowledges that digoxin injections create a risk of extramural delivery
(unplanned fetal expulsion when the woman is not at a medical facility). In addition, the
district court found that digoxin use caused increased risks of nausea, vomiting, and
hospitalization.
Third, the district court found that umbilical-cord transection wasn't possible in all
cases; that it increased the risk of pain, infection, uterine perforation, and bleeding; and
that it increased the time required for the abortion. In response, the State cited one study
that looked at umbilical-cord transection; while the study found that the procedure was
safe, its authors noted that the results couldn't necessarily be generalized.
The State does not argue that these alternatives provide any safety benefit to the
woman—the State simply argues that regardless of the additional risks, costs, and time
that they impose, the alternatives are not an "undue burden." The board-certified
physicians who provided testimony to the district court have never routinely induced fetal
demise before performing a D & E abortion. Given the additional risk, inconvenience,
discomfort, and potential pain associated with these alternatives, some of which are
virtually untested, we conclude that banning the standard D & E, a safe method used in
about 95% of second-trimester abortions, is an undue burden on the right to abortion.
Kansas courts presume that a properly enacted statute is constitutional, and the
party claiming otherwise must prove its case. Downtown Bar and Grill, 294 Kan. at 192;
23
State ex rel. Schneider v. Liggett, 223 Kan. 610, 616, 576 P.2d 221 (1978). Based on the
district court's factual findings, along with Casey, Stenberg, and Gonzales, the plaintiffs
have done so here. The district court properly found that the plaintiffs had shown a
substantial likelihood of prevailing on the merits in this lawsuit.
As we noted previously, the State has not challenged in its appellate brief the
district court's conclusion that the plaintiffs had met the other requirements for a
temporary injunction (irreparable harm, lack of adequate legal remedy, balance of harms
in plaintiffs' favor, and injunction not adverse to public interest). Accordingly, the district
court properly entered a temporary injunction so that the law would not take effect
pending the full presentation of evidence at trial and a final decision by the district court.
CONCLUSION
We conclude with four final observations about the resolution of this case in our
court.
First, we are not called upon in this case to announce, or to act upon, our own
personal views regarding abortion. As the United States Supreme Court said in Casey:
"Men and women of good conscience can disagree, and we suppose some always
shall disagree, about the profound moral and spiritual implications of terminating a
pregnancy, even in its earliest stage. Some of us as individuals find abortion offensive to
our most basic principles of morality, but that cannot control our decision. Our obligation
is to define the liberty of all, not to mandate our own moral code." Planned Parenthood
of Southeastern Pa. v. Casey, 505 U.S. 833, 850, 112 S. Ct. 2791, 120 L. Ed. 2d 674(1992).
We have done our best to carry out that obligation to define the liberty of all—squarely
based on the precedents of the Kansas Supreme Court and the United States Supreme
24
Court, which we are required to apply—and not to mandate our own moral code or
religious beliefs.
Second, this is the first case in which a Kansas appellate court has been required to
decide whether the Kansas Constitution provides a right to abortion. That's because this is
the first time a plaintiff has brought such a claim solely under the state constitution—
even though the federal Constitution provides an abortion right. A plaintiff has the
procedural right to choose the legal theories he or she will pursue; we cannot force the
plaintiffs here to choose another legal avenue. See The Fair v. Kohler Die Co., 228 U.S.
22, 25, 33 S. Ct. 410, 57 L. Ed. 716 (1913) (Holmes, J.) ("Of course, the party who brings
a suit is master to decide what law he will rely upon . . . ."); Xpedior Cred. Trust v. Credit
Suisse First Boston, 341 F. Supp. 2d 258, 268 (S.D.N.Y. 2004) ("The choice of legal
theories is a strategic choice to be made by plaintiff, and neither the court nor the
defendant is permitted to override that choice."); Golden v. Den-Mat Corporation, 47
Kan. App. 2d 450, 463, 276 P.3d 773 (2012) ("A plaintiff may assert some available
theories but not others. And the plaintiff may pick and choose at his or her discretion so
long as the defendant has been fairly apprised of the circumstances.").
Third, our court is equally divided, seven voting to affirm the district court and
seven voting to reverse. When an appellate court is equally divided, the trial court's ruling
is affirmed. Paulsen v. U.S.D. No. 368, 239 Kan. 180, 182, 717 P.2d 1051 (1986); see
Neil v. Biggers, 409 U.S. 188, 191-92, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).
Fourth, although our court is equally divided, we believe we have still fulfilled our
role in the Kansas justice system. An intermediate appellate court never has the final say;
our ruling in this case will almost surely be reviewed at some point by the Kansas
Supreme Court. In its review, the Kansas Supreme Court will have the benefit of the
independent and careful review that all of our judges have provided to the issues
25
presented and the lessons to be learned from prior Kansas and federal cases. In the
meantime, the parties must have a result, and we have provided that as well.
The district court's grant of a temporary injunction is affirmed by an equally
divided court.
PIERRON, MCANANY, BUSER, STANDRIDGE, and ARNOLD-BURGER, JJ., join in the
foregoing opinion.
***
ATCHESON, J., concurring: In July 1859, delegates gathered to draft a constitution
that would govern the Kansas Territory upon its recognition as a state. The 35
Republicans and 17 Democrats labored under the watchful eyes of a nation then riven by
fierce debate over what we now know as undebatable—the illegitimacy of slavery and
the role of government in denying an inherent right of self-determination to an entire
race. That nation, too, had begun to brace for a cataclysmic resolution of the debate that
optimistically might be confined to an extraordinary political upheaval but realistically
could extract a far worse price paid in blood.
In that unparalleled time, the new Republican Party and its prominent exponents,
among them a lawyer from Illinois named Abraham Lincoln, aligned with the abolitionist
cause. They had taken up words from the Declaration of Independence as a rallying cry:
"[A]ll men are created equal . . . endowed by their Creator with certain unalienable
Rights, that among these are Life, Liberty, and the pursuit of Happiness." The delegates
to the Wyandotte Convention deliberately drew from those words to fashion the first
section of the Kansas Constitution's Bill of Rights: "All men are possessed of equal and
inalienable natural rights, among which are life, liberty, and the pursuit of happiness."
Today, more than 150 years removed from that time and place, we have had thrust upon
26
us the task of applying § 1 of the Kansas Constitution Bill of Rights in a modern world to
another aspect of self-determination more particularly associated with gender. It is not a
task I would have sought out. Nor is it one for which we have much in the way of incisive
guidance from our judicial predecessors.
To meet that task, we must first examine the circumstances prompting the
delegates to turn to the language of the Declaration of Independence to define a
constitutional right. And from those circumstances, we then have to discern how best to
apply that constitutional right in a different time. As I outline, for Republicans advancing
toward the inevitable final battle over slavery, the passage from the Declaration of
Independence expressed not only a present intent to resist the spread of slavery whenever
and wherever possible but also a fervent hope that in future times the constellation of
rights there identified would be extended and deepened in a society respecting the
essential freedom and liberty of each person and all peoples. That same aspirational spirit
infused § 1 of the Kansas Constitution Bill of Rights.
True to that intent and hope, I must conclude the words of § 1—words that remain
unchanged from the day they were adopted—continue to define a right of self-
determination. And today in a society recognizing women as full and equal participants in
both the benefits and burdens of that society, self-determination necessarily precludes the
government from dictating fundamental decisions regarding reproduction and severely
fences governmental intrusion otherwise aimed at influencing those decisions or
impeding their implementation. Just as the State could not constitutionally compel a
woman to terminate a pregnancy, it cannot prohibit her from doing so, subject only to
carefully limited regulation necessary to serve essential governmental interests.
In turn, based on the limited record assembled in the early stages of this litigation,
I agree the Shawnee County District Court correctly found Plaintiffs Herbert C. Hodes
and Tracy Lynn Nauser, medical doctors who perform abortions as part of their practice,
27
have likely shown Senate Bill 95, codified as K.S.A. 2015 Supp. 65-6741 et seq., violates
§ 1. See L. 2015, ch. 22. The record indicates Senate Bill 95 would complicate most
second trimester abortions without advancing any genuine State interest. The district
court, therefore, properly issued a temporary injunction halting its implementation.
The district court and my colleagues who would affirm the district court have
concluded that § 1 and § 2 of the Kansas Constitution Bill of Rights effectively duplicate
the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the
United States Constitution, so they apply federal law governing abortion as Kansas
constitutional law. I believe § 1 provides an entirely separate constitutional protection
without direct federal counterpart. Because in my view § 1 alone supports the district
court's ruling, albeit based on a different constitutional analysis, I consider § 2 only in
passing.
I set out the basis for my conclusion in four parts. In the first section, I outline the
historical context in which the drafters of the Kansas Constitution included § 1 in the Bill
of Rights. Next, I discuss the protections in § 1 prohibiting undue government
interference with those inalienable rights, including reproductive freedom, that compose
self-determination. Third, I consider both the arguments the State has advanced against
such protections and my colleagues' assessment that § 1 imports federal constitutional
law to serve as state constitutional law. In the last part, I explain why Senate Bill 95
likely violates § 1, warranting injunctive relief during the pendency of this case.
I.
In less than 300 words spoken in a Pennsylvania hamlet on November 19, 1863,
Abraham Lincoln cast an American creed that generally has come to be accepted as
representing the noble best of this nation. Lincoln wove together intent and hope as he
defined the proposition upon which this country was founded as the inherent right of all
28
men to equality and alluded to the unfinished work in advancing that cause. He then paid
tribute to the ultimate sacrifice of the Union soldiers who perished there 4 months earlier
in the battle of Gettysburg. In doing so, Lincoln traced the expression of this nation's
essence to the Declaration of Independence. The indelible opening to the Gettysburg
Address left no doubt as to the source of Lincoln's vision of that ideal—87 years
measured from the creation of the Declaration of Independence. He looked to the same
words the drafters of the Kansas Constitution placed in its Bill of Rights.
The intersection of Lincoln, the Declaration of Independence, and the Kansas
Constitution is no accident of history. That intersection, amidst the bitter fight over
slavery, imparts meaning to the Kansas Constitution and, in particular, § 1 of the Bill of
Rights.
During the years the Kansas Territory struggled to secure entry into the Union as a
free state, Lincoln often spoke publicly of the Declaration of Independence as the polestar
in defining American idealism—most prominently, perhaps, in his own campaign for the
United States Senate just months before his fellow Republicans led the way in drafting
the Kansas Constitution at the Wyandotte Convention. The fate of Bleeding Kansas
riveted a nation consumed by the intensifying storm of free colliding with slave and the
underlying moral imperative of how the dispossessed and the disenfranchised ought to be
treated in a fair society. On the eve of the constitutional convention, Kansas Republicans
met as a party to adopt resolutions outlining their vision for a free and fair society. Their
vision expressly saw in the Declaration of Independence recognition of fundamental
rights extended to people "of all countries and all times."
As events in Kansas shaped national politics and debate, the reverse was also true.
So historical context bears directly on what the drafters of the Wyandotte Constitution
sought to achieve and how we should consider the result of their work a century and a
half later.
29
The Kansas Territory undertook steps for admission to the Union in 1855, as free-
state proponents repudiated the proslavery territorial legislature as illegitimate and
gathered to draft the Topeka Constitution. Kansas statehood stalled in Congress, where
Illinois Senator Stephen A. Douglas, a nationally prominent Democrat, helped orchestrate
the opposition. In the meantime, proslavery forces came across the border from Missouri.
Some of those "border ruffians" meddled in Kansas politics, leading to continual
assertions of fraudulent territorial elections. Others chose more violent confrontations
with their free-state counterparts, guerrilla skirmishing that prompted the "Bleeding
Kansas" nickname.
In July 1856, the Republican Party held its first national convention in anticipation
of the presidential election that fall. The party platform expressly invoked the Declaration
of Independence and included a resolution that "the inalienable right to life, liberty, and
the pursuit of happiness" should be "secure[d] . . . to all persons" and slavery should not
be allowed in any territories. Much of the balance of the platform consisted of a
remonstrance that "the dearest Constitutional rights of the people of Kansas have been
fraudulently and violently taken from them" and a call for the immediate admission of the
Kansas Territory as a free state. In the national election, Republican presidential
candidate John Fremont carried 11 free states but lost to Democrat James Buchanan.
A year later, the proslavery Kansas territorial legislature authorized another
constitutional convention. The delegates drafted the Lecompton Constitution explicitly
permitting slavery as an exercise of an "inviolable" right to property "higher than any
constitutional sanction." Continuing the byzantine political maneuverings that had come
to be territorial politics, Kansans went to the polls during the convention and elected a
free-state legislature. In December 1857, the Lecompton Constitution was then approved
in a special election that most free-state proponents boycotted. In the meantime, the new
legislature was called into special session and scheduled a second vote for January 1858,
resulting in a sound rejection of the Lecompton Constitution.
30
Nonetheless, President Buchanan requested that Congress admit the Kansas
Territory as a slave state under the Lecompton Constitution. That was too much for many
northern Democrats who joined with Republican congressional members to derail
Buchanan's proposal. The resulting compromise led to yet a third vote on the Lecompton
Constitution in August 1858. It was voted down by more than 5 to 1.
On March 6, 1857, the United States Supreme Court ruled that Dred Scott, a slave,
lacked standing to sue in federal court for the freedom of his family after they had been
taken by their owner to several states and territories that outlawed slavery. Scott v.
Sandford, 60 U.S. 393, 15 L. Ed. 691 (1856). The Court held that people forcibly brought
to this country as slaves and their descendants were of an "inferior class of beings" and,
therefore, could not be considered to have the legal capacity to sue in federal court. 60
U.S. at 404-05, 426-27. So, the Court said, Scott's suit should have been dismissed for
want of jurisdiction. The Court went on to find slaves to be property and, thus, similarly
incapable of bringing suit. 60 U.S. at 453. In arriving at those conclusions—rightfully
considered perhaps the most judicially and morally reprehensible ever issued by the
Court—Chief Justice Roger B. Taney took the opportunity to offer his assessment of the
Declaration of Independence as a document describing rights belonging to the white race
and to suggest any other purpose too farfetched to be fairly entertained. 60 U.S. at 410
("The unhappy black race . . . were never thought of or spoken of except as property, and
when the claims of the owner or the profit of the trader were supposed to need
protection."). The decision ratcheted up the national debate over slavery and fueled the
division between Republicans and Democrats and their free-state and proslavery backers.
In mid-June 1857, Senator Douglas gave a speech in the Illinois statehouse
embracing Chief Justice Taney's view of the Declaration of Independence as he
commented on the Scott decision and other issues of the day. He rhetorically suggested
"any sane man" must believe the authors of the Declaration spoke only of the white race.
Indeed, Senator Douglas offered that the rights described in the Declaration were
31
intended only for the British subjects residing in the colonies. Lincoln was invited to give
a speech there and did so about 2 weeks later. The forum and the competing addresses
bore significant political implications, since Lincoln had emerged as a likely challenger
to Senator Douglas.[1]
[1]At that time, the United States Constitution empowered state legislatures to
select senators. Lincoln and Douglas, thus, addressed the government body that would
choose the next senator from Illinois. Not until ratification of the Seventeenth
Amendment in 1913 did the United States Constitution mandate direct popular election of
senators.
In what became known as the Dred Scott speech, Lincoln placed an entirely
different meaning on the invocation of inalienable rights in the Declaration of
Independence. Responding directly to Senator Douglas' cramped interpretation, he stated:
"I had thought the Declaration contemplated the progressive improvement in the
condition of all men everywhere." As an example, Lincoln offered the image of a slave
woman who "in her natural right to eat the bread she earns with her own hands without
asking leave of anyone else . . . is my equal, and the equal of all others."
Lincoln undertook an extended disquisition on the significance of including
inalienable rights in the Declaration of Independence and the authors' conception of those
rights as being fully realized not in their own time but in some more progressive era. In
part, Lincoln said of Thomas Jefferson and the others who helped write the Declaration:
"They defined with tolerable distinctness, in what respects they did consider all men
created equal in 'certain inalienable rights, among which are life, liberty, and the pursuit
of happiness.' This they said, and this meant. They did not mean to assert the obvious
untruth, that all were then actually enjoying that equality, nor yet, that they were about to
confer it immediately upon them. In fact they had no power to confer such a boon. They
meant simply to declare the right, so that the enforcement of it might follow as fast as
circumstances should permit. They meant to set up a standard maxim for free society,
which should be familiar to all, and revered by all; constantly looked to, constantly
32
labored for, and even though never perfectly attained, constantly approximated, and
thereby constantly spreading and deepening its influence, and augmenting the happiness
and value of life to all people of all colors everywhere."
Barely a year later, the Republican Party nominated Lincoln to oppose Senator
Douglas in his bid for reelection. The pair agreed to seven joint campaign appearances
across Illinois that would form the historic Lincoln-Douglas debates, though in format
they really were uninterrupted addresses in which one man spoke first and last with the
other speaking in between. The campaign and the debates drew national attention in part
because of Senator Douglas' political stature and in part because the issues drew heavily
upon slavery, the status of the Kansas Territory, and the darkening specter of the Union
metaphorically if not actually split in two. In that cauldron, Lincoln and Douglas again
advanced their conflicting views of the Declaration of Independence.
At the fifth debate in Galesburg on October 7, 1858, Senator Douglas opened by
discussing the Kansas-Nebraska Act and offering an extended explanation of his position
on the Lecompton Constitution and the circumstances under which the Kansas Territory
might be admitted as a state. After accusing Lincoln and the Republicans of waffling on
the rights to be extended "the negro" in the Declaration of Independence, Senator
Douglas affirmed that the founders intended to establish a government "made by white
men for the benefit of white men and their posterity forever, and was intended to be
administered by white men in all time to come." Early in his reply, Lincoln briefly
dismissed Douglas' characterization of the Declaration of Independence as lacking any
historical support.
But Lincoln returned to the topic in the remaining debates. Six days later in
Quincy, Lincoln repeated that all people without regard to color were embraced within
the Declaration of Independence and enjoyed "the right of life, liberty, and the pursuit of
happiness." And he again alluded to a person's "right to eat the bread without the leave of
33
anybody else which his own hand earns." In the final debate in Alton on October 15,
Senator Douglas spoke extensively about his unwillingness to support the Lecompton
Constitution and the Democratic Party's desire that each state and territory decide for
itself whether to permit or bar slavery. He also repeated his view that the Declaration of
Independence was meant to apply only to men of European descent. During his response,
Lincoln quoted at length from his Dred Scott speech and noted that those remarks had
been printed and widely disseminated. He reiterated that the essential right set forth in the
Declaration of Independence came with both a promise "that the enforcement of it might
follow as fast as circumstances should permit" and an understanding that it would
"constantly [be] spreading and deepening its influence . . . to all people, of all colors,
everywhere."
Although Republican candidates for the Illinois Legislature captured more popular
votes than their Democratic rivals in the election, the Democratic Party retained control
of the legislature based on how the districts had been drawn and carry-over incumbents
not up for reelection. As a result, the legislature returned Douglas to the Senate in
January 1859. But the campaign—particularly the debates—vaulted Lincoln to national
prominence as a powerful voice of the emergent Republican Party. He, of course, would
go on to become the party's presidential nominee in 1860 and to beat Senator Douglas,
the Democratic Party nominee, in a four-way race that included Southern Democratic
Party candidate John C. Breckinridge and John Bell of the Constitutional Union Party.
When the Kansas Republican Party held its first political convention in mid-May
1859, the organization extended an invitation to Lincoln to address the proceedings.
Although he declined, Lincoln sent a letter written for the occasion urging the party
leadership to resist "the temptation to lower the Republican Standard in order to gather
recruits," for doing so "would surrender the object of the Republican organization—the
preventing the Spread and Nationalization of Slavery." In his stead, Horace Greeley, the
34
publisher of the New York Tribune and an early backer of the national Republican Party,
spoke to convention attendees.
Greeley recalled the efforts of Republicans nationally in support of the Kansas
Territory's admission to the Union as a free state in 1856 and referred to "the able and
gallant Lincoln of Illinois" as a forceful opponent of allowing slavery to spread to free
soil. In keeping with the occasion, Greeley pointed out that key principles of the
Republican Party's national platform recognized "every innocent man has a right to
himself . . . [and] to fair and just recompense for his own labor." And he scolded the
Democratic Party for embracing "the natural, necessary, rightful subjugation of one race
to another" contrary to the "fundamental position of Jefferson and the Fathers" expressed
in the Declaration of Independence.
At the party convention, Kansas Republicans adopted resolutions that, among
other things: (1) acknowledged the Declaration of Independence as containing "self-
evident truths" that afford "popular rights for all countries and times;" (2) opposed the
expansion of slavery to free states or territories and any importation of Africans as slaves;
and (3) called upon the delegates to the Wyandotte Constitutional Convention to include
in a bill of rights a provision that neither slavery nor involuntary servitude should ever be
permitted in Kansas except as punishment for crimes. Those provisions paralleled the
national party's platform and echoed Lincoln's invocation of the Declaration of
Independence as a testament to a set of rights inhering in all peoples transcending both
forms of government and societal precepts fixed in a particular era.
Six weeks later, the delegates to the Wyandotte Constitutional Convention
gathered to do their work.
A fortnight into the convention, the delegates had one of their more protracted
discussions over what would become § 1 of the Kansas Constitution Bill of Rights. As
35
originally proposed, the section was notably wordier and borrowed directly from the
1851 Ohio Constitution, which served as a template for much of the Bill of Rights and
other parts of the Wyandotte Constitution. The debate included considerable back and
forth over how the provision might affect criminal statutes and enforcement of the federal
Fugitive Slave Act. A number of amendments were proposed and tabled. At least a
couple of them appeared to be pointed jabs from one Republican delegate toward the
Democrats, suggesting they wished to deny those rights to persons of African descent.
Toward the end of the debate, Samuel Kingman, a Republican, proposed the
language that would become § 1. Kingman described the words as stating an "old truth"
drawn from the Declaration of Independence—a document he said "formed part of our
political creed, from which no man can extricate himself." Kingman, however, did not
elaborate on the meaning he imputed to that particular truth and simply pronounced the
language "broad enough for all to stand upon." Another delegate suggested the provision
to be imprecise and again touched on the interplay between the Kansas Constitution and
federal law. The delegates then approved Kingman's language on a 42 to 6 vote, a tally
leaving 4 delegates unaccounted for.
In short order, the delegates adopted § 2 without debate. Likewise, without
discussion, they adopted a prohibition of slavery as § 6—a provision that paralleled the
state Republican Party's resolution approved that May.
The delegates completed their mission on July 29, 1859, although the Democrats
refused to sign the finished document. The Wyandotte Constitution was, nonetheless,
overwhelmingly approved by popular vote about 2 months later. With Lincoln's election
as president in November 1860, southern states began seceding to form the Confederacy.
Congress, less the members from those states, joined with departing President Buchanan
to approve statehood for the Kansas Territory. On January 29, 1861, Kansas joined the
Union as a free state with the Wyandotte Constitution as its charter. Lincoln took the oath
36
of office as President on March 4. The Civil War began on April 12 when Confederate
troops fired on the federal garrison at Fort Sumter, South Carolina. The war ended 4
years later with military dead on both sides of more than 600,000 and an inestimable loss
of civilian life and property. Less than a week after General Robert E. Lee's surrender to
General Ulysses S. Grant, Lincoln belonged to the ages—the first American President to
be assassinated.[2]
[2]An astute lawyer and canny politician, Lincoln also was an exceptionally able
social engineer and statesman who turned his conceptualization of the intrinsic equality
of all people and of governance by consent of the governed into secular American gospel.
Those themes repeatedly appear in his public and private discourse, most recognizably in
the Gettysburg Address. And Lincoln had long appropriated the Declaration of
Independence to that purpose. So his expression of the document's vision may be more
nearly his own than Jefferson's. Lincoln chose his words carefully, especially for
prepared addresses, often with profoundly affecting results. In doing so, he also recast the
medium of expression with a modernistic style that replaced grandiloquent rhetoric with
direct, accessible phrasing. Lincoln, of course, mastered the medium as almost no one
else ever has.
II.
A century and half removed from that epochal period, we have been asked to
construe § 1 and § 2 of the Kansas Constitution Bill of Rights with little in the way of
concrete guidance from either the convention debate itself or judicial decisions since. The
chasm of time and circumstance between then and now defies any casual description. We
must discern from that earlier time and circumstance why the drafters turned to language
from the Declaration of Independence, and then we must gather the overarching purpose
they imputed to words that had been appropriated in their era as guiding principle in the
fight against slavery.
To that end, I put aside § 2 and return to it only briefly, since I do not see in § 2
rights that address the issue before us. But properly understood and applied, § 1 does. So
I look there.
37
The text of § 1 is worth repeating: "All men are possessed of equal and
inalienable natural rights, among which are life, liberty and the pursuit of happiness." The
sentence must be read and understood as expressing a single, complete idea. It shouldn't
be broken into phrases or subparts as if it were a criminal statute outlining elements of an
offense or a revenue measure listing taxable commodities. Section 1, rather, offers a
profound declaration of a set of rights to be universally embraced across the artificial
boundaries of nations and their governments and unburdened by some constricted sense
of humanity drawn from a time past. The drafters, thus, constitutionalized a principle
transcending institutional forms and temporal limitations to touch something more basic
in defining the condition of living as a human being. Moreover, they acted with the hope
and, indeed, the understanding that deep into the future, society would be better and fairer
in ways they could not foresee, thus clarifying and even enhancing that definition. So the
principle they captured in § 1 would be no less profound and no less necessary in that
future time, which is to say our time.
The language obviously borrows from the Declaration of Independence, as
Delegate Kingman explained. But § 1 takes full meaning from what the words had come
to embody in 1859 as an integral statement of principle of the Republican Party, both
nationally and in Kansas, and the abolitionist movement. What Jefferson and the others
contributing to the Declaration of Independence might have meant provides historical
backdrop. More removed still are the European philosophers, particularly John Locke,
whose discourse on natural rights influenced Jefferson. Although slavery divided the
colonial revolutionaries and the framers of the United States Constitution, it did so
without the urgency of impending disaster. The Kansas Constitution was directly
informed by the depth and immediacy of the crisis over slavery and the pronounced
preferences of the Republican Party in addressing the crisis.[3]
38
[3]Delegate Kingman, a lawyer, served on the Kansas Supreme Court for about 14
years. A review using modern computerized search techniques indicates Kingman wrote
no opinions discussing either § 1 or the Declaration of Independence.
The language of § 1 has no direct or even generally analogous counterpart in the
United States Constitution. The provision, therefore, affords protections distinct from any
in the United States Constitution and should be construed independently of federal
constitutional law.
By invoking and constitutionalizing natural rights, § 1 brings into the sphere of
government a set of principles that exist outside societal and representative organizations.
Natural rights derive from an authority or source greater than those organizations and
may be thought of as essential for a human being to live in a condition recognizing his or
her humanity. Slavery, for example, is anathema to such natural rights. For one person to
own another is to deprive the one owned of any semblance of autonomy, an indispensable
component of any characterization of natural right reposing in the ability to think
deliberately and act on that deliberation. Slaves are chattel of their masters, unable to
come and go as they please, associate as they wish, or work in a manner of their choosing
while enjoying the product of their labor. They are reduced to things—beasts of burden—
toiling neither by their own election nor in their own service.
By natural right, then, one person may not be controlled by another. That is bound
up in liberty as the term is used in § 1. Similarly, a person is entitled to his or her property
without the interference of another. That is bound up in the pursuit of happiness, although
the breadth of the phrase isn't especially well set. The rights, however, function
collectively rather than distinctly to define what may be fairly considered as self-
determination or the exercise of free will.
When people join together to form societal or governmental organizations for their
mutual benefit, they leave their natural state and, thereby, cede any immediate resort to
39
those natural rights. They substitute some form of democratic decisionmaking designed
to advance the good of the community. The bargain supposes that the organization will
not decimate those natural rights. The organization, therefore, could not aid and abet
slavery, either by facilitating its private institution or engaging directly in it as public
policy. As suggested in the Declaration of Independence, should an organization
transgress the natural rights of the members of a recognized group within the
organization—"one people" in the words of the Declaration—that group could seek
redress and, if rebuffed, "dissolve the political bands" of affiliation with the organization.
The disaffiliation then restores the natural state as between the organization and the
departing group.
Section 1, however, reconfigures the relationship between natural rights and a
governmental entity by making those rights part of the government's charter to be
considered and enforced in the same manner as other parts of the charter. In our tripartite
forms of government at both the federal and state levels, the judicial branch has been
entrusted with the duty to construe the charter, here the Kansas Constitution, and to
determine if the executive branch or legislative branch may have overstepped the limits
imposed in the charter. More or less, that is the task before us today with respect to
Senate Bill 95.
The rights pronounced and protected in § 1 are those constituent in the natural
right of self-determination. And in keeping with the intent of the Kansas Republicans of
1859 who drafted and approved § 1, the right of self-determination should be assessed as
one for all times. Just as self-determination may be realized in freedom from bondage and
in the concomitant ability to make choices, both profound and prosaic, it necessarily
extends to procreation. Decisions about procreation infuse self-determination and the
manner in which a sense of self may be projected forward. Some may choose offspring as
their favored medium for projecting themselves into the future. Others may choose good
works apart from childbearing and childrearing. But even less contemplative decisions
40
regarding procreation are equally an exercise of self-determination and must be so
treated. Self-determination is not reserved for the especially insightful or the deeply
philosophical.
Because reproductive freedom is an essential quality of self-determination and,
thus, a natural right, § 1 shields that freedom against excessive governmental
encroachment. Consistent with § 1, the State cannot compel a woman to bear children.
Nor can it compel her to terminate a pregnancy or to be sterilized upon giving birth to a
healthy child. But, likewise, the State may not force the opposite choices upon a woman,
for that is equally incompatible with the constitutional shield for self-determination. A
woman has a right to reproductive freedom that entails deciding whether to continue or
terminate a pregnancy. In short, § 1 prevents the State from banning abortion and
substantially limits government regulation impeding the exercise of self-determination as
expressed in an individual's decisions regarding procreation.
That result is entirely in keeping with the progressive, aspirational quality the
Republican Party had advanced for the language of the Declaration of Independence
preceding the Civil War. In the hands of the Republican delegates to the Wyandotte
Convention, the same quality infused the words of § 1 with the same spirit and hope for a
fair society eventually exceeding their expectation or comprehension.
In that time, women were denied much of any role in government and were kept
from any semblance of full and equal participation in society generally. They were
treated as distinctly less able than men—best suited for domesticity rather than
decisionmaking. Most visibly, of course, women could not then vote or hold public
office. We now recognize women to be just as capable as men in managing their own
affairs and those of government and industry. Although the general societal and legal
acceptance of gender equality hasn't yet reached every quarter, § 1 doesn't bend to the
41
obdurate views of those who would cling to the days when white men were the
acknowledged masters of the realm.
Consistent with the drafters' overarching vision for § 1, women cannot now be
permitted only a half-measure of self-determination. Accordingly, women have a right
protected in § 1 to exercise reproductive freedom as an essential component of their self-
determination. To suggest otherwise ignores the promise of § 1 as a forward-looking right
and denigrates women as human beings lacking the capacity to make decisions for
themselves. The suggestion, in turn, simply inflates a pernicious stereotype that women
are flighty creatures in constant need of guidance and protection to be supplied either by
menfolk or, in this case, a meddlesome government. That sort of paternalistic claptrap
animates the majority opinion in Gonzales v. Carhart, 550 U.S. 124, 159-60, 127 S. Ct.
1610, 167 L. Ed. 2d 480 (2007), the United States Supreme Court's most recent
pronouncement on federal abortion rights. See also 550 U.S. at 183-86 (Ginsburg, J.,
dissenting) (dismissing the notion as an "antiabortion shibboleth" that "concededly" lacks
supporting evidence). But the notion has no place in assessing the scope of § 1 in a
modern world—a world the drafters of the Kansas Constitution anticipated, even though
they understood they could not envision its particular contours. In short, § 1 cannot now
be constrained by a definition of a woman's right to self-determination dependent upon
mid-19th Century social and political conventions.
Constitutional rights, however, are not boundless, and self-determination, as
protected in § 1, is no exception. But self-determination is an essential right deserving of
the utmost respect. Accordingly, government action—here in the form of a legislative
enactment—may not summarily or heedlessly impede that right. Any impairment must be
carefully circumscribed to further an essential governmental interest. For example,
statutes generally regulating medical procedures, physicians, and other aspects of the
healing arts would not run afoul of § 1, especially if they were intended to materially
enhance patient safety. Conversely, given the apparently low incidence of complications
42
associated with widely used surgical and nonsurgical abortion procedures, the State
presumably could not single out those procedures or the medical practitioners using them
for heightened regulation without some exceptional justification. In Section IV, I discuss
how this standard applies to Senate Bill 95 and why Senate Bill 95 appears to contravene
§ 1.
In at least some iterations, natural rights did not extend to those incapable of
exercising them, notably children and the mentally infirm. Those individuals, however,
were considered wards of immediate relatives, such as parents, who would act as their
guardians. As I have said, § 1 does not consist of unalloyed natural rights, since the very
inclusion of them in a constitution transforms them from rules operating in an
environment without government to a brake on government. Government entities have
long exercised in loco parentis supervision over minors and have facilitated legal
guardianships for the incompetent. Nothing in § 1 upsets those governmental functions,
so that a parent chronically neglecting or abusing a child could be sanctioned civilly or
criminally.
In that context, a viable fetus has a peculiar legal status. A viable fetus is capable
of living apart from its mother but isn't doing so. Yet, the fetus is not counted as a child in
many respects. Age is measured from birth, not viability. The same is true for income tax
deductions. Nonetheless, the capacity of a viable fetus is such that the State may exercise
some degree of stewardship for its welfare. Accordingly, the State may limit a woman's
exercise of reproductive freedom in terminating a pregnancy after the fetus has reached
viability.
Before reaching viability, however, a fetus is, by definition, incapable of
independent existence. And the fetus is similarly incapable of free-will or self-
determination—attributes necessary to exercising natural rights. In that situation, a
woman's right of self-determination, as established in §1, takes precedence over any
43
inchoate interest of a fetus that is not yet viable. Similarly, governmental interference
with a woman's decision regarding a pregnancy at that point would effectively reduce an
inalienable right to a limited license.
In 2013, the Kansas Legislature enacted K.S.A. 65-6732 reciting as findings that
life begins at conception and that upon fertilization, a human ovum immediately has a
protectable interest "in life, health and well-being." Based on those findings, the statute
requires state law to "be interpreted and construed" to give the zygote as it gestates the
legal rights accorded "other persons, citizens and residents of this state." K.S.A. 65-
6732(b). The statute cannot, however, alter the constitutional rights secured in § 1. That's
because the legislature cannot mandate how the courts construe constitutional
protections. And K.S.A. 65-6732(b) more or less acknowledges as much by noting its
effect is "subject only to" the United States Constitution and the Kansas Constitution. To
suppose otherwise negates the fundamental authority of the judiciary. Gannon v. State,
298 Kan. 1107, 1160-61, 1168, 319 P.3d 1196 (2014); Board of County Com'rs of
Leavenworth County v. McGraw Fertilizer Serv., Inc., 261 Kan. 901, 916, 933 P.2d 698(1997) ("When a question of interpretation of the Kansas Constitution arises, it is the
function and duty of this court to define constitutional provisions.").
As the State has pointed out in this case, the Kansas Constitution may be changed
if the legislature chooses to put a proposed amendment to a vote of the people. See Art.
14, § 1, Kansas Constitution. To the extent the legislature believes the protections for
self-determination in § 1 may be in need of change, it has the authority to ask the people
to consider taking such a step. The legislature cannot statutorily circumvent the people's
prerogative by directing how the judiciary must interpret the constitution. But I read
K.S.A. 2014 Supp. 65-6732(b) to include legislative recognition that the courts (properly)
should not apply the statute in construing the Kansas Constitution. Given that
recognition, I need not explore potential defects in the statute itself.
44
Self-determination, of course, is not confined to reproductive freedom. Nor is § 1.
This case, however, requires no greater elaboration on the breadth of § 1. The component
natural, inalienable rights protected in § 1 are necessarily narrow, since they originate
outside the constructs of government and organized society and their exercise must be
essential for a person to act as an independent human being. At the same time, a natural
right, if exercised, cannot diminish another person's rights. So taking someone's property
isn't a natural right. By and large, criminal statutes would not, then, run afoul of § 1
certainly insofar as they impose punishments of incarceration for malum in se offenses.
Malum prohibitum offenses generally carry comparatively minor punishments that
wouldn't even arguably implicate § 1. The forensic foil of a life sentence for a parking
offense, see Rummel v. Estelle, 445 U.S. 263, 274 n.11, 100 S. Ct. 1133, 63 L. Ed. 2d 382(1980), presumably would, but it also would undoubtedly violate the ban on cruel or
unusual punishment in § 9 of the Kansas Constitution Bill of Rights.
How arguably more targeted provisions of the Kansas Constitution, such as § 9,
interact with § 1 isn't wholly obvious. The lines of division in the Bill of Rights aren't
precise. For example, the prohibition on slavery in § 6 also bars "involuntary servitude,
except for the punishment of crime[.]" As a result, the exception in § 6 presumably limits
the proscription in § 9. Similarly, slavery violates both § 1 and § 6, so those provisions
act in tandem. Section 1, in turn, must reach beyond slavery, as the common
understanding of natural rights would suggest and as the aspirational intent of the drafters
would require. The provision otherwise would have been redundant and unnecessary. To
address the issues at hand, I need not plumb the legal relationship between § 1 and the
other protections in the Kansas Constitution Bill of Rights.
I turn briefly to § 2, since Drs. Hodes and Nauser also premise their action on that
part of the Kansas Constitution Bill of Rights. Section 2 provides:
45
"All political power is inherent in the people, and all free governments are
founded on their authority, and are instituted for their equal protection and benefit. No
special privileges or immunities shall ever be granted by the legislature, which may not
be altered, revoked or repealed by the same body; and this power shall be exercised by no
other tribunal or agency."
In the first sentence, the drafters expressed the broad idea that governments derive
their legitimacy from the consent of the governed. If a government acts contrary to that
consent or dismisses such consent as superfluous, it can no longer be characterized as
"free" and, presumably, has become tyrannical. I don't especially see in that statement a
specific protection "the people" may enforce through the judicial process so much as an
implicit recognition of the pronouncement in the Declaration of Independence that an
identifiable constituency has an inherent right to sever connections with a government
turned repressive.
But that acknowledgment serves as a prelude to the balance of the sentence that
states free governments are to afford "equal protection and benefit" to the people. The
second clause easily can be read to secure a right comparable to the Equal Protection
Clause of the Fourteenth Amendment, as the Kansas Supreme Court has recognized. See
State v. Limon, 280 Kan. 275, 283, 122 P.3d 22 (2005). We do not, however, have an
equal protection claim in front of us. The second sentence of § 2 precludes the legislature
from authorizing irrevocable "privileges or immunities." Whatever the limitation imposed
by that part of § 2, it has no apparent application here, and none of the parties has argued
otherwise.
III.
The State contends § 1 contains no enforceable rights and is merely a precatory
platitude. But that plainly is incorrect. Had the drafters meant the language of § 1 to be
constitutional filigree, they would have put it in the preamble. The Lecompton
46
Constitution, for example, included a statement similar to § 1 in the preamble with no
comparable provision within its text. The difference, especially with the importance those
words bore for the Republicans, is compelling.
During the Wyandotte Convention debate, the delegates argued whether § 1 could
be construed to relieve Kansans of any obligation to enforce the federal Fugitive Slave
Act. The discussion would have been wholly unnecessary had the delegates intended § 1
to establish no enforceable constitutional rights. None of the delegates offered that idea as
a denouement to the disagreement.
The Kansas Supreme Court has consistently indicated § 1 and § 2 have much the
same effect as the Equal Protection and Due Process Clauses of the Fourteenth
Amendment. Limon, 280 Kan. at 283; Henry v. Bauder, 213 Kan. 751, 752-53, 518 P.2d
362 (1974). Although those statements do little to fix the precise contours of § 1 and § 2,
they cannot be reconciled with an argument that either provision is merely the
constitutional counterpart of a zero—a placeholder adding nothing of real value.
The court's decision in Schaake v. Dolley, 85 Kan. 598, 118 P. 80 (1911), has been
tossed around as supporting the State's argument. But it doesn't. Without citing any
particular authority, the court recognized § 1 to protect a liberty interest resting in a
person's right to engage in "a gainful occupation of his own choosing." 85 Kan. 598. To
me, that sounds more like economic due process than inalienable right and seems to rest
on now discarded Lochnerian notions that laborers enjoy the "freedom" to agree to work
inhumane hours for depressed wages because oligopolistic employers have the power to
impose those conditions. See Ferguson v. Skrupa, 372 U.S. 726, 730, 83 S. Ct. 1028, 10
L. Ed. 2d 93 (1963); Lincoln Federal Labor Union, No. 19129 v. Northwestern Iron &
Metal Co., 335 U.S. 525, 534-37, 69 S. Ct. 251, 93 L. Ed. 212 (1949) (tracing rise and
ultimate rejection of substantive due process right to contract); Lochner v. New York, 198
U.S. 45, 53, 25 S. Ct. 539, 49 L. Ed. 937 (1905) (right to contract regarding commerce
47
recognized as liberty interest protected in Fourteenth Amendment from government
regulation of terms and conditions of employment). Pertinent here, however, the court
found § 1 to be a source of enforceable rights, thus contradicting to the State's argument
to us.
The Schaake court went on to say that the right to pursue employment had to yield
to reasonable government regulation aimed at promoting the common good, so the
plaintiffs had no constitutional right to insist the state agency regulating banking issue
them a charter for what would be the fifth bank in Abilene—something the agency
determined would exceed marketplace demand and imperil the stability of the banks. In
that context, pertaining to economic regulation, the court observed that § 1 "cannot be
entirely disregarded" but serves more as a guide to the legislature to act appropriately in
the public interest than as a grant of judicial authority to supplant reasonable legislative
action. 85 Kan. at 601. The court's admonition, however, does not obviously extend
beyond the economic interests of the kind at issue in the case. Its lengthy discussion fairly
well confirms as much.
The Schaake decision also suggests a court could not turn to natural law, as such,
to resolve a legal dispute. 85 Kan. at 602. As I have indicated, that is true. But it really
has nothing to do with applying § 1. Natural law exists outside the constructs of
government. Courts, as creatures of the government, are empowered to construe and
apply the rules of the government as expressed in an organic document, legislative
enactments, and judicial precedent. They have no license to reach beyond those rules to
decide the matters before them. Section 1, however, constitutionalizes a segment of
natural law defining self-determination, thereby bringing that set of rights within the rules
of government and the body of law the Kansas courts may draw upon in settling legal
disputes.
48
The State also relies heavily on Kansas Territorial statutes in effect at the time the
Wyandotte Constitution was drafted that prohibited abortions except "to preserve the life"
of the woman and criminalizing an abortion of a "quick child" as manslaughter and
otherwise as a misdemeanor. Kan. Terr. Stat. 1855, ch. 48, § 10; Kan. Terr. Stat. 1855,
ch. 48 § 39. Similar statutes remained in effect for over 100 years. In 1969, the Kansas
Legislature considerably broadened the health exception, L. 1969, ch. 180, sec. 21-3407,
although abortion otherwise remained illegal in Kansas until Roe v. Wade, 410 U.S. 113,
93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). The State argues that history undercuts any
contention the drafters intended § 1 or any other part of the Kansas Constitution to permit
abortions.
We may fairly conclude the delegates to the Wyandotte Convention did not
consider reproductive freedom or abortion in drafting the Kansas Constitution. But that
doesn't mean the drafters intended § 1 to be a static statement of self-determination. The
circumstances strongly indicate otherwise and show the drafters meant to provide a
constitutional protection that would grow to take account of maturing societal values they
recognized they could not necessarily foresee. As I have already explained, § 1 strove to
capture a right with a "spreading and deepening" influence reflecting "the progressive
improvement in the condition of all men everywhere," as Lincoln expressed it, and a right
"for all times," as Kansas Republicans put it just weeks before the Wyandotte
Convention. So that history does not trap women with a stunted measure of self-
determination today.
I turn next to the reading my colleagues give to § 1 in affirming the district court's
temporary injunction. They say the Kansas Supreme Court has found in § 1 a
constitutional equivalent to the Due Process Clause of the Fourteenth Amendment. So § 1
necessarily includes the unenumerated constitutional rights comprising the substantive
due process liberty interests protected in the Fourteenth Amendment. Those interests
include, among other things, interlocking rights to be free of undue government intrusion
49
in decisions about contraception and childrearing and a prohibition on involuntary
sterilization as a penal sanction. Based on those precedents, the United States Supreme
Court recognized a substantive due process right to abortion. See Roe, 410 U.S. 113. If §
1 replicates in all respects the Due Process Clause, then it obviously includes the same
right to abortion. In effect, as Judge Leben explains, the federal constitutional law of
abortion becomes the Kansas constitutional law of abortion.
Assuming the constitutional equivalence of the Due Process Clause of the
Fourteenth Amendment and § 1 of the Kansas Constitution Bill of Rights, I would agree
with Judge Leben's conclusion that Senate Bill 95 likely contravenes the Kansas
Constitution based on the limited record compiled in the district court. I would, therefore,
also agree that the district court properly issued a temporary injunction.
Although I ultimately arrive at the same legal conclusion, I question the
assumption of equivalence. I have a difficult time seeing in § 1 a due process provision
akin to the Fourteenth Amendment, and I don't believe the drafters intended to adopt such
a provision. Rather, as I have explained, § 1 rests on language intentionally taken from
the Declaration of Independence that is without a counterpart in the United States
Constitution. As such, § 1 provides a constitutional protection that has no direct analog in
the federal Constitution. So § 1 should not be construed or applied using federal
constitutional law as guide, let alone an exact template. If, however, § 1 does include
Fourteenth Amendment due process rights, those rights must be in addition to and not to
the exclusion of the "equal and inalienable natural rights" actually described there.
The delegates to the Wyandotte Convention could not have intended to
incorporate the Fourteenth Amendment into the Kansas Constitution, since the
amendment would not be drafted for another 6 years. But the Fifth Amendment to the
United States Constitution bundles together a number of diverse protections, including a
Due Process Clause. It, in part, states: "[N]or shall any person . . . be deprived of life,
50
liberty, or property, without due process of law." Although the Fifth Amendment applies
to the federal government, its due process provision parallels what would later appear in
the Fourteenth Amendment as a check on state action. Clear due process language was no
mystery in 1859. Even more immediate for the Wyandotte Convention delegates, the
Lecompton Constitution did include a due process clause. Section 9 of the Lecompton
Constitution Bill of Rights provided: "[N]o freeman shall be . . . deprived of his life,
liberty, or property, but by the judgment of his peers, or the law of the land."
The Wyandotte Constitution lacked an explicit due process provision like the ones
in the Fifth Amendment and the Lecompton Constitution. But it did incorporate double
jeopardy and self-incrimination protections for criminal defendants, mirroring those
portions of the Fifth Amendment. See Kansas Constitution Bill of Rights § 10. And § 18
of the Bill of Rights guaranteed Kansans a "remedy by due course of law" for "injuries
suffered in person, reputation or property," a provision still recognized to require fair
procedures for resolving legal disputes. Harrison v. Long, 241 Kan. 174, 178-79, 734
P.2d 1155 (1987). But § 18 has never been construed to be a repository of unenumerated
constitutional rights.[4] The omission from the Kansas Constitution of due process
language like that in the Fifth Amendment, especially coupled with the inclusion of
double jeopardy and self-incrimination protections, must be seen as the drafters' exercise
of studied consideration rather than as the result of inadvertence. Moreover, nothing in
the Wyandotte Convention debate on § 1 suggests the delegates intended the provision to
protect procedural or substantive due process rights rather than to constitutionalize the
inalienable rights enunciated in the Declaration of Independence and championed by the
Republican Party.
[4]Section 18 requires an adequate substitute remedy if the legislature limits or
abrogates a common-law cause of action. See Bair v. Peck, 248 Kan. 824, 838-39, 811
P.2d 1176 (1991); Manzanares v. Bell, 214 Kan. 589, 599, 522 P.2d 1291 (1974). But the
substitute-remedy principle is quite different from substantive due process and the
recognition of rights not explicitly stated in constitutional text.
51
As Judge Leben explains and I have noted, the Kansas Supreme Court has
frequently indicated § 1 and § 2 function at least similarly to the Equal Protection and
Due Process Clauses of the Fourteenth Amendment. The court has consistently
considered the two sections as if they were conjoined constitutional twins. But they
shouldn't be treated as more interdependent than any other provisions in the Bill of
Rights. And, as I have also noted, § 2 alone can be fairly construed as comparable to the
Equal Protection Clause.
Nobody, however, has unearthed a case in which the Kansas Supreme Court has
actually relied on § 1 to find and enforce an unenumerated constitutional right to decide a
legal controversy. Many of the cases, particularly the early ones, are mishmashes that
mention both federal and state constitutional rights and never really explain the actual
bases for their rulings. The decision in Brick Co. v. Perry, 69 Kan. 297, 76 Pac. 848(1904), is illustrative. The opinion referred to § 1, the Fourteenth Amendment, the right
to contract, and a natural right prohibiting one person from being compelled to provide
personal services to another. 69 Kan. at 299-301. Without mapping out a coherent
analytical path through that terrain, the court simply held the statute, prohibiting an
employer from discharging an employee because of union affiliation, to be
unconstitutional.
Some decisions describing § 1 and § 2 as akin to the due process and equal
protection rights in the Fourteenth Amendment decide the disputed issues solely on equal
protection grounds and, thus, do little more than mention due process. See, e.g., Tri-State
Hotel Co. v. Londerholm, 195 Kan. 748, 759-61, 408 P.2d 877 (1965). Other decisions
simply find no basis for relief in § 1 given the facts and, therefore, do not define the
nature or scope of its protections. In State v. Wilson, 101 Kan. 789, 168 Pac. 679 (1917),
the court found statutory limits on the distribution and redemption of trading stamps
implicated no fundamental rights protected in § 1 however the provision might be
construed. More recently in Manzanares v. Bell, 214 Kan. 589, 522 P.2d 1291 (1974), the
52
court upheld compulsory no-fault auto insurance, rejecting a claim the statutory scheme
impaired § 1 rights. The Manzanares decision can be read either to tacitly say § 1 and § 2
provide due process protections or to simply assume as much in rejecting plaintiffs'
arguments. 214 Kan. at 608-09. The negative conclusions in Wilson and Manzanares
serve as examples of what § 1 does not protect and offer little to establish what § 1 does
protect.
Those decisions do not, however, specifically hold § 1 to be a source of rights
otherwise unstated in the text of the Kansas Constitution. So the idea that § 1 is a
repository of those rights, thus replicating the substantive due process component of the
Fourteenth Amendment, is a jurisprudential abstraction—a hypothetical possibility that
has never been turned into the reality of a ruling. I am disinclined to treat § 1 that way
absent a definitive determination from the Kansas Supreme Court, especially when the
language and history of the provision offer only scanty support. To reemphasize my
earlier point, even if § 1 includes due process protections, they do not squeeze out the
inalienable rights expressly identified in the text.
Accordingly, the protection for reproductive freedom in § 1 is materially different
from the substantive due process right to privacy secured in the Fourteenth Amendment
and the related federal right to abortion recognized in Roe, 410 U.S. at 152-54. Section 1
derives from natural law, a source external to the Kansas Constitution, and is intended to
be forward-looking, taking account of societal conditions as they are when the right is
invoked. In turn, § 1 effectuates self-determination consistent with an evolving and ever
more enlightened understanding of humanity across both race and gender. Conversely,
substantive due process encompasses unenumerated or implicit rights that originate
within the United States Constitution and are then enforced as "liberty" interests
protected in the Fourteenth Amendment. Precisely because those rights have no explicit
verbal anchor or identification in any specific constitutional text, they are typically
defined through a backward-looking analysis focusing on what has already been accepted
53
over time as a "deeply rooted" part of national history and experience. Washington v.
Glucksberg, 521 U.S. 702, 720-21, 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997).
The "liberty" in § 1, however, is simply an example of a natural right. It does not
absorb implicit constitutional rights and make them natural rights protected in § 1. In
other words, the liberty of § 1 is simply one expression of self-determination, just as
reproductive freedom is another. By contrast, the liberty of the Fourteenth Amendment's
Due Process Clause is a repository for otherwise unexpressed federal constitutional
rights. Those implicit rights are not natural rights. So the liberty of § 1 is neither the legal
equivalent of nor interchangeable with the liberty of the Due Process Clause. The
protections of § 1 would exist as they are now even if there were no federal substantive
due process. In turn, federal law governing substantive due process, including privacy
and abortion, has no particular application in construing § 1 either directly or by analogy.
Buttressing the distinction, the Declaration of Independence is not itself a source
of enforceable law in the same way the United States Constitution or federal statutes are.
The United States Supreme Court does not invoke the language of the Declaration of
Independence as controlling authority to resolve legal disputes, including those involving
abortion rights. And the framers of the United States Constitution did not transplant
language from the Declaration of Independence to create constitutional rights. The ideas
set forth in the Declaration of Independence do inform an American tradition or creed
that may guide the courts in exploring those values and precepts to the extent they might
bear on federal law. Section 1, however, stands on an entirely different footing. As a part
of the Kansas Constitution Bill of Rights, § 1 enunciates a positive, enforceable
constitutional mandate that shields identified rights drawn from the Declaration of
Independence rather than implicit rights originating elsewhere in the Kansas
Constitution.[5]
54
[5]In the Declaration of Independence, the inalienable rights extended to all
peoples are said to have originated with "their Creator." And the Declaration similarly
refers to "Nature's God" in explaining the authority justifying the dissolution of a political
union. Section 1, however, omits any reference to the origin of the natural law
constitutionalized there. I read little into those editorial differences, as such. The
described rights exist outside of and independent of governmental entities, making them
natural and inalienable. Apart from that, their origins seem more a matter of philosophy
than jurisprudence. Jefferson, the primary author of the Declaration of Independence, is
frequently described as something of a deist, acknowledging a supreme being but
embracing no particular religion. So the references in the Declaration of Independence do
not plainly point to Christian or Biblical teachings as interpretive tools. The absence of
any such references in § 1 only underscores the inapplicability of religious dogma as
constitutional subtext.
Along the same lines, § 1 cannot be readily construed to contain a right matching
Fourteenth Amendment equal protection. Section 1 refers to "equal and inalienable
natural rights," meaning simply that one person is entitled to no greater measure of those
rights than any other person. As a constitutional protection, § 1 broadly prevents the
government from affording some people or identifiable groups greater self-determination
than others. That is not nearly as expansive as the Equal Protection Clause, which
requires a government to treat similarly situated individuals equivalently in all respects
absent sound policy reasons for doing otherwise. See Reed v. Reed, 404 U.S. 71, 75-76,
92 S. Ct. 251, 30 L. Ed. 2d 225 (1971).
As a matter of textual interpretation, the word "equal" in § 1 describes the phrase
"natural rights" to define what the people possess. Everybody, therefore, has the same
natural rights. That parallels the language from the Declaration of Independence
recognizing that "all men are created equal" and expresses the same idea. Section 1 does
not establish "equal rights," on the one hand, and "inalienable natural rights," on the
other, as two distinct sets of rights—a misreading that would at least foster an argument
for § 1 functioning in part like the Equal Protection Clause.
55
IV.
The remaining question before us asks whether Senate Bill 95 comports with § 1
of the Kansas Constitution Bill of Rights. At this stage, Drs. Hodes and Nauser need only
show a substantial likelihood that the measure impermissibly impairs the right of self-
determination protected there. If so, the district court properly entered the temporary
injunction. As Judge Leben has explained, the State does not dispute that Drs. Hodes and
Nauser have satisfied the other criteria for a temporary injunction.
Senate Bill 95 effectively prohibits a physician from performing a dilation and
evacuation abortion without first stopping the fetus' heart. The D & E procedure is the
most common method of abortion in second trimester pregnancies. Drs. Hodes and
Nauser perform D & E abortions beginning in the 15th week of pregnancy. They do not
stop the fetal heart before terminating the pregnancy. Some physicians apparently do
induce fetal heart stoppage as part of their protocols for performing D & E abortions in
pregnancies that have reached 18 weeks, according to the evidentiary record in the
district court.[6]
[6]In abortion challenges decided under federal law, physicians have standing to
assert the constitutional rights of their patients. See Isaacson v. Horne, 716 F.3d 1213,
1221 (9th Cir. 2013). Although Drs. Hodes and Nauser rely on state constitutional rights
in this case, the parties do not suggest a problem with standing. Especially if substantive
federal abortion law is Kansas abortion law, the standing requirements ought to follow, as
well. I have no reason to suppose physicians lack standing to assert their patients' § 1
protections for reproductive freedom, as an independent state constitutional right. Senate
Bill 95 would subject Drs. Hodes and Nauser to criminal penalties for continuing to
perform D & E abortions as they have. The threat of those sanctions would deter Drs.
Hodes and Nauser, directly impairing their patients' constitutional rights. Those closely
intertwined interests, the nature of the right impaired, and a looming legal injury in-fact
to the physicians support standing. See Comprehensive Health of Planned Parenthood v.
Kline, 287 Kan. 372, 406, 197 P.3d 370 (2008).
56
The evidentiary record is quite limited. Drs. Hodes and Nauser submitted several
written statements, including their own. The statements refer to medical literature from
various sources, including journals and a practice guide from the American College of
Obstetricians and Gynecologists. The State offered no countering statements but cited
some of the same literature and a few other medical publications in its responsive papers
to the district court. The district court held a hearing on the temporary injunction at which
the lawyers argued their clients' respective legal positions. Neither side called any
witnesses. I presume a merits trial would prompt a more extensive airing of evidence on
medical practices for second trimester abortions.
A fetus is not viable until sometime after 20 weeks' gestation. I take what may be a
lay view of viability to mean the fetus has reached a point of gestational maturity to
survive with immediate extraction and exceptional medical care even if the woman were
to die. (Conversely, and more to the point for my discussion, a nonviable fetus is one that
has not reached that stage of development.) The precise gestational point of viability is,
as I understand it, open to some debate within the medical community.
The Kansas Legislature has found that "20 weeks after fertilization," a fetus
"reacts to stimuli that would be recognized as painful if applied to an adult human." The
finding is codified in K.S.A. 2014 Supp. 65-6722(b). This seems to be a roundabout way
of saying a fetus appears to feel pain at 20 weeks' gestation. The statute also refers to
unspecified "substantial medical evidence" that a fetus "is capable of experiencing pain"
at that stage of gestational development. K.S.A. 2014 Supp. 65-6722(j). The legislature
presumably respects its own findings, and the State cannot jettison that finding in arguing
the legislative purpose for or governmental interest advanced in Senate Bill 95. Indeed, in
K.S.A. 2014 Supp. 65-6722(k), the legislature specifically claims "a compelling state
interest in protecting the lives of unborn children" as they reach that developmental stage.
But a legislative recitation of compelling interest alone has little legal significance for
constitutional purposes. Whether an asserted governmental interest is compelling requires
57
an independent judicial determination. See Shaw v. Hunt, 517 U.S. 899, 908 & n.4, 116
S. Ct. 1894, 135 L. Ed. 2d 207 (1996) (state "must show" its action furthers a compelling
interest); Concrete Works of Colorado, Inc. v. City and County of Denver, 36 F.3d 1513,
1522 (10th Cir. 1994) (whether evidence establishes a compelling interest presents a
question of law). Otherwise, legislatures could heavily insulate their enactments from
judicial review simply by labeling every statute as serving a "compelling interest" in
solving some problem or advancing some policy.
Particularly pertinent here, the State has neither argued prevention of fetal pain as
a legislative purpose for Senate Bill 95 nor presented evidence on the issue. At this point,
then, for women with pregnancies between 15 and 20 weeks, the D & E procedure aborts
nonviable fetuses that no one has shown experience pain. The procedure requires a
physician to dissect the fetus within the uterus and to extract the parts through the birth
canal. According to Dr. Nauser's affidavit, that usually takes 3 to 10 minutes. Senate Bill
95 effectively prohibits a physician from performing a D & E abortion without first
stopping the fetus' heart. The parties have identified three ways of doing so: cutting the
umbilical cord or injecting the fetus with either digoxin or potassium chloride. According
to the limited information in the district court record, each of those means is invasive,
requiring the insertion of surgical instruments or needles that would otherwise be
unnecessary.
The umbilical cord may not be easily accessible in some situations, rendering that
method difficult or unavailable. The surgical process carries some risk of injuring the
woman if the instruments are mishandled. The evidence does not indicate precisely how
severing the umbilical cord then causes fetal heart stoppage.
Digoxin and potassium chloride injections effectively induce fetal heart attacks.
Potassium chloride appears to be little used in actual practice. In a written statement
submitted to the district court, Dr. Anne Davis, M.D., a physician who teaches at
58
Columbia University and treats patients at the school's medical center, stated digoxin
injection to be the most common means of inducing fetal heat stoppage for a D & E
abortion. She explained the injection is administered 1 or 2 days before the abortion and
may not be effective, requiring a second administration of the drug. Other times,
however, a digoxin injection may cause the woman to expel the fetus before the
procedure and, thus, outside a medical facility. The State has cited medical literature
indicating that at least some physicians inducing fetal heart stoppage as part of their D &
E protocol do so, in part, because the fetal tissue softens and may be more easily
extracted. Dr. Davis, however, stated the limited research on digoxin injection "has not
shown medical benefits" in abortion procedures.
In summary, the medical evidence presented to the district court indicates that
requiring a physician to stop the fetal heartbeat before performing a D & E abortion
increases the invasiveness of the procedure and potential risks to the woman and
lengthens the overall process—quite substantially for digoxin injections—with, at best,
only nominal clinical benefit. Based on the district court record, a D & E abortion
performed before 20 weeks does not implicate possible fetal pain or distress. So that can't
be a reasonable justification for requiring fetal heart stoppage before every D & E
abortion.
The State's remaining argument rests on the unaesthetic description of a D &E
abortion contained in Senate Bill 95 and in Gonzales v. Carhart, 550 U.S. 124, 135-36,
127 S. Ct. 1610, 167 L. Ed. 2d 480 (2007). But aesthetics really cannot justify legislative
limitations on safe medical procedures. The lack of justification is even more pronounced
when the procedure is integral to a woman's constitutional right to self-determination and
reproductive freedom. The government cannot impose upon an essential right because
some exercise of the right may be unaesthetic or even repulsive to some people. That's all
the more true when those people needn't see or participate in the protected activity.
59
The legislative history of Senate Bill 95 also fails to establish a clear purpose for
the measure, further detracting from the State's argument and any judicial obligation to
favor it over a constitutional right. Senate Bill 95 contains no findings or statements of
legislative purpose. Cf. Pub. L. 108-105 (2003) (extensive congressional findings
contained in federal measure banning intact D & E abortions). The House Journal reflects
one representative stating he favored Senate Bill 95 because it furthered a governmental
interest in protecting "babies" from an inhumane death. Nine other representatives said
they wanted to ban abortions and supported Senate Bill 95 as an incremental, though
inadequate, step in that direction. House J. 2015, pp. 548-49. Senate Bill 95 passed in the
House by a vote of 98 to 26. House J. 2015, p. 548. In the Senate, the measure passed 31
to 9. Senate J. 2015, p. 141. Eleven senators said they voted in favor of Senate Bill 95
because D & E abortion entails a "brutal and inhumane procedure," the continued use of
which "will further coarsen society to the humanity of the unborn, as well as all
vulnerable and innocent human life." Their statement mirrors one of the congressional
findings supporting the ban on intact D & E abortions. Pub. L. 108-105 (2003), codified
at 18 U.S.C. § 1531 (2012). None of the other legislators voting for Senate Bill 95 offered
an explanation of his or her position.
We, then, have no idea why 108 of the 129 legislators supporting Senate Bill 95
did so. But we do know they chose not to join formally in the officially recorded reasons
their colleagues expressed. The State, however, effectively says we ought to take the
statements of the 21 legislators—about 16 percent of those supporting Senate Bill 95—
combined with the silence of others as reflecting the sense of the majority. But the State's
implication seems quite inappropriate. The silent legislators were just that—silent, and
their silence conveys no particular message. Many of them simply may have concluded
the political implications of voting yes were likely to be considerably less than for voting
no. I cannot infer a particular legislative purpose or governmental interest advanced in
Senate Bill 95 based on the Senate and House Journals, the source the State has suggested
we review.[7]
60
[7]There is no analytical inconsistency in requiring some direct statement of
legislative intent for a specific statute, such as Senate Bill 95, and in drawing meaning for
§ 1 of the Kansas Constitution Bill of Rights from surrounding societal conditions,
especially absent an otherwise clear pronouncement from the drafters themselves. Elected
politicians approve statutes, typically by the bushel, and stand for reelection on what they
have done or failed to do. Intent and purpose may be mixed in those circumstances, since
political self-preservation frequently may blend or conflict with loftier policy objectives.
In that context, silence rarely can be anything but inscrutable. When the vast majority of
legislators are silent about a statute and their support for it, we, as judges reviewing that
work, should infer nothing about purpose beyond what the words of the final bill convey.
Had Senate Bill 95 included particular findings as to purpose, we could (and likely
should) conclude those legislators voting in favor endorsed the findings absent an express
disavowal and statement of some alternative reason.
Section 1 and, to some extent, any constitutional provisions protecting individual
freedoms against governmental infringement may be viewed differently. A bill of rights
stands as a timeless statement of principles. Statutes typically are neither intended to be
timeless nor to pronounce broad principles. Rather, they implement particular policies
that can be quite mechanical—speed limits on state highways or tax rates on liquor.
Legislators may readily refine or alter statutory policies to suit changing needs or shifting
political demands. In marked contrast, the delegates to the Wyandotte Convention went
there to perform a discrete task, albeit an extraordinarily significant one. When they
completed the task, they were done. They faced no popular vote to continue as delegates.
Nor were they expected to reconvene to amend their work. Given the nature of their
obligation, we may presume the delegates reflected upon the circumstances surrounding
them—a climate unlike any other in the country's history—in laying out the principles in
the Kansas Constitution Bill of Rights. And we may find indicators of their intent and
purpose in those extraordinary circumstances.
The limited evidence presented in the district court and the legislative record offer
little in the way of a State interest furthered by Senate Bill 95. Whatever the
governmental interest, it would then have to be weighed against the constitutional right of
self-determination and the constituent reproductive freedom protected in § 1. This
balancing of governmental interest and constitutional protection is uniquely one of
Kansas law because § 1 differs from any federal constitutional right. There is no reason to
turn to federal abortion law to control or even guide our assessment.
61
The State, acting through its elected and administrative agents, must respect a
person's constitutional right of self-determination and the concomitant freedom it
bestows. The right by its very description in § 1 has to be considered fundamental—an
inalienable right embracing life and liberty could hardly be something less. As such, the
courts must subject government action impairing the right to exacting review without
deference to any legislative prerogative or presumption of constitutionality. See
Downtown Bar and Grill, LLC v. State, 294 Kan. 188, 194, 273 P.3d 709 (2012). Even if
a statute reflects legislative exercise of police powers, as Senate Bill 95 presumably does,
the measure must survive exacting judicial review should it curtail a constitutionally
protected fundamental right. Cf. Manzanares, 214 Kan. at 600-01 (recognizing
heightened review likely applicable when legislature acts under police powers and
resulting statute impedes fundamental right); Kadrmas v. Dickinson Public Schools, 487
U.S. 450, 458, 108 S. Ct. 2481, 101 L. Ed. 2d 399 (1988) (government interference with
individual's "access to" fundamental right "trigger[s] strict scrutiny"). Doing otherwise, in
effect, vaults legislation ahead of an elemental constitutional barrier to governmental
overreach, undercutting the very purpose of a bill of rights in shielding a select set of
fundamental precepts from the vicissitudes of politics and the cravenness of politicians.
The State, therefore, gets no thumb on its side of the judicial scale for Senate Bill 95.
At the same time, however, constitutional rights are not impervious to limited
legislative constraint in service of a purpose central and necessary to a core function of
government. That is, even a fundamental right may be regulated to advance an essential
governmental interest, so long as the regulation is carefully circumscribed and does no
more than required to advance that interest. The degree of constraint, therefore, must be
commensurate with its necessity in advancing that governmental purpose.
By that measure, Senate Bill 95 likely violates § 1 based on the present evidentiary
record. The point isn't really even debatable. Under § 1, prohibiting abortion is not itself a
proper government purpose. Any limitation or constraint on abortion must further an
62
established core governmental function, and here the State has the obligation to show
how Senate Bill 95 serves such an interest. I am willing to assume prevention of fetal
pain rises to that level. But Senate Bill 95 is not carefully circumscribed to further the
interest. Consistent with the legislature's own finding, fetuses do not experience pain
before 20 weeks' gestation, so requiring fetal heart stoppage in D & E abortions
performed in pregnancies before then cannot serve that interest. Causing fetal heart
stoppage offers little or no medical benefit to the woman but expands possible risks
associated with the procedure and extends its duration. Medical safety, therefore, is not a
consideration.
The remaining legislative justification suggested for Senate Bill 95 lies in an
aesthetic aversion for the way D & E abortions are done. Regulating medical procedures
based on their purported aesthetics is not a core governmental function. It would seem to
be no governmental function at all. The availability of entirely different medical
procedures for second trimester abortions is irrelevant, since the legislature has simply
dictated how D & E abortions must be performed for a reason wholly disassociated from
an appropriate governmental objective.
The district court, therefore, acted properly in temporarily enjoining Senate Bill 95
in anticipation of a trial on the merits of the action Drs. Hodes and Nauser have brought.
For the reasons I have explained, I would affirm the district court in so ruling.
***
MALONE, C.J., dissenting: Derek Schmidt, in his official capacity as the attorney
general of Kansas, and Stephen M. Howe, in his official capacity as the district attorney
of Johnson County, collectively referred to hereinafter as the State, appeal the district
court's order granting a temporary injunction staying the enforcement of the Kansas
Unborn Child Protection from Dismemberment Abortion Act ("the Act"). The Act was to
63
go into effect on July 1, 2015. L. 2015, ch. 22. The plaintiffs, Hodes & Nauser, MDs,
P.A., Herbert C. Hodes, M.D., and Traci Lynn Nauser, M.D., filed a petition in Shawnee
County District Court seeking declaratory and injunctive relief from the Act. On June 30,
2015, the district court granted a temporary injunction staying enforcement of the Act
until further order of the court or until a final judgment is entered in the matter.
In granting the temporary injunction, the district court ruled, for the first time in a
Kansas court, that "Sections 1 and 2 of the Bill of Rights of the Kansas Constitution
independently protects the fundamental right to abortion." The district court further ruled
that "Plaintiffs have established a substantial likelihood of success on their claims that the
Act violates their patients' right to abortion protected under Sections 1 and 2 of the
Kansas Constitution Bill of Rights." Today, our equally divided court upholds the district
court's ruling, with seven judges voting to affirm the district court on both issues,
although their reasoning for reaching this result is not the same.
The other seven judges on this court—myself and the six judges who join in this
opinion—would hold that the Kansas Constitution does not contain an independent state-
law right to abortion. Based on this finding, and because the plaintiffs' claims are brought
solely under the Kansas Constitution, it follows that the plaintiffs have failed to establish
a substantial likelihood of prevailing on the merits of their claims. Because we have
seven votes in favor of affirming the district court's order and seven votes in favor of
reversing it, the district court's order granting a temporary injunction is affirmed by an
equally divided court. See Pierce v. Pierce, 244 Kan. 246, 247, 767 P.2d 292 (1989)
(when an appellate court is equally divided, the judgment of the lower court is affirmed).
The legal battleground over D & E abortions
This case is about second-trimester dilation and evacuation (D & E) abortions. To
fully understand what is at stake in this lawsuit and the constitutional analysis that
64
follows, it is necessary to summarize various types of abortion procedures. It is also
necessary to summarize the current state of federal law relating to D & E abortions.
The most common first-trimester abortion method is vacuum aspiration, otherwise
known as suction curettage. In this method, the physician uses a small tube, known as a
suction curette, which is attached to a suction apparatus, to empty the uterus. About 90
percent of all abortions performed in the United States take place during the first
trimester of pregnancy. Stenberg v. Carhart, 530 U.S. 914, 923, 120 S. Ct. 2597, 147 L.
Ed. 2d 743 (2000). The Act does not regulate this procedure.
The most common method of performing a second-trimester abortion is the D & E
method. Stenberg, 530 U.S. at 924. In a D & E, a physician uses forceps or a similar
instrument to remove the fetus, instead of or in conjunction with a suction curette.
Usually, disarticulation of the fetus occurs as the physician brings the fetus through the
cervix. Stated differently, "[t]he doctor grips a fetal part with the forceps and pulls it back
through the cervix and vagina, continuing to pull even after meeting resistance from the
cervix. The friction causes the fetus to tear apart." Gonzales v. Carhart, 550 U.S. 124,
135, 127 S. Ct. 1610, 167 L. Ed. 2d 480 (2007). "At the conclusion of a D & E abortion
no intact fetus remains. . . . [T]he abortionist is left with 'a tray full of pieces.'" Stenberg,
530 U.S. at 959 (Kennedy, J., dissenting) (quoting plaintiff-physician's description of D
& E procedure based on record in that case). Although some physicians may induce fetal
demise before performing a D & E after 18 weeks gestation, Hodes and Nauser do not
take steps to cause fetal demise prior to beginning the D & E procedure.
Another procedure is the "intact D & E" or dilation and extraction (D & X),
sometimes called a "partial-birth abortion." In this procedure, after the cervix is dilated,
the fetus is removed from the uterus while still intact. While the fetus is still in the
mother's body, the physician pierces and collapses the fetus' skull and then removes the
fetus. Kansas has a statute banning this procedure. See K.S.A. 2014 Supp. 65-6721.
65
In Roe v. Wade, 410 U.S. 113, 152-53, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), the
United States Supreme Court recognized for the first time a right to abortion based in the
liberty interest protected by the Due Process Clause of the Fourteenth Amendment to the
United States Constitution. Several years later, in Planned Parenthood of Southeastern
Pa. v. Casey, 505 U.S. 833, 877, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992) (plurality
opinion), the Court announced an undue-burden standard courts must apply when
considering the constitutionality of abortion regulations. An undue-burden finding, as
described in Casey, "is a shorthand for the conclusion that a state regulation has the
purpose or effect of placing a substantial obstacle in the path of a woman seeking an
abortion of a nonviable fetus." 505 U.S. at 877.
In Stenberg, a physician who performed abortions brought suit on behalf of
himself and his patients, challenging the constitutionality of a Nebraska statute banning
"partial-birth abortion." The case worked its way to the United States Supreme Court,
which held that: (1) The statute was unconstitutional because it lacked any exception for
the preservation of the health of the mother, and (2) the statute was unconstitutional
because it applied to the D & E procedure as well as to the D & X procedure, and thus
imposed an undue burden on a woman's ability to choose D & E abortion, thereby unduly
burdening the right to choose abortion itself. 530 U.S. at 938, 945-46.
Seven years later, in Gonzales, the United States Supreme Court again considered
a statute banning a particular method of abortion. The Court again applied the undue-
burden test, but this time it upheld the statute—a federal ban on the D & X procedure.
550 U.S. at 133, 146-47, 150-54. The Court found that the government's legitimate
interests in showing "its profound respect for the life within the woman" and in protecting
the integrity and ethics of the medical profession were rationally furthered by a statute
banning a procedure that Congress found was similar to infanticide. 550 U.S. at 157-58.
The Gonzales Court held that the ban did not have the effect of imposing an undue
burden on the right to abortion. Key to this holding was the fact that this statute, unlike
66
the Nebraska statute in Stenberg, clearly banned only the D & X procedure—the D & E
procedure remained legal. 550 U.S. at 164.
After Gonzales, it appeared that the United States Supreme Court had drawn a
clear line: The D & X procedure could be banned, but any statute that attempted to ban
the D & E procedure would be unenforceable under the federal Constitution. In 2015, the
Kansas Legislature passed the Act which is now before this court. Contrary to Hodes and
Nauser's claim, the Act does NOT ban the D & E procedure. Instead, the Act allows a
physician to perform a D & E as long as steps are taken to cause fetal demise before
dismemberment. See L. 2015, ch. 22, secs. 2-3. Whether those steps impose an undue
burden on a patient's right to abortion in Kansas is the focus of the second issue in this
case. It appears that the intent of the legislature was that if the D & E must be allowed by
law, the only humane method to perform the procedure is to first cause fetal demise. One
Kansas senator, joined by 10 others, partially explained his rationale for voting in favor
of the Act: "To destroy an unborn child by employing the barbaric and immoral practice
of dismemberment is deplorable." Sen. J. 2015, p. 141.
Because Hodes and Nauser do not induce fetal demise before performing a D & E,
they claim the Act bans this portion of their practice. Hodes and Nauser filed a petition in
Shawnee County District Court seeking declaratory and injunctive relief from the Act.
They asked the district court to declare the Act unconstitutional and to enjoin the State
from enforcing the Act. But here is where the case takes a different twist. Hodes and
Nauser did not assert a claim under the clearly recognized right to abortion found in the
United States Constitution. Instead, they asked the district court to find that the Act
unconstitutionally inhibits the right to abortion found in the Kansas Constitution.
Based on sparse evidence presented by the plaintiffs and no evidence presented by
the State, the district court granted a temporary injunction staying the enforcement of the
Act until further order of the court or until final judgment is entered in the matter. In
67
doing so, the district court concluded that "Sections 1 and 2 of the Bill of Rights of the
Kansas Constitution independently protects the fundamental right to abortion." The
district court also concluded that the plaintiffs had shown a substantial likelihood of
success on the merits of their claim that the Act violates their patients' right to abortion
protected by the Kansas Constitution. We must address these issues in the same order.
Does the Kansas Constitution provide an independent state-law right to abortion?
When analyzing the constitutionality of a statute, courts adhere to certain general
principles. First, we "presume statutes are constitutional and must resolve all doubts in
favor of a statute's validity. [Citations omitted.]" Siruta v. Siruta, 301 Kan. 757, 786, 348
P.3d 549 (2015). The party attacking the statute usually bears the burden to demonstrate
its unconstitutionality. See Hoesli v. Triplett, Inc., 303 Kan. 358, 369, 361 P.3d 504(2015) (citing In re Tax Appeal of Weisgerber, 285 Kan. 98, 102, 169 P.3d 321 [2007]).
Here, the district court erred as a matter of law by finding a "fundamental right" to
abortion, thereby subjecting the Act to strict scrutiny and stripping away the presumption
of constitutionality. As the United States Supreme Court clarified in Casey, abortion
regulations are subject to the undue-burden test, which is neither rational-basis review
nor strict scrutiny. 505 U.S. at 877. Thus, the Act in question is cloaked with the
presumption of constitutionality and the burden is on the plaintiffs to demonstrate
otherwise. But before we address the constitutionality of the Act, the threshold question
in this appeal is whether the Kansas Constitution recognizes a right to terminate a
pregnancy independent of the right grounded in the United States Constitution.
As an initial matter, we address Hodes and Nauser's assertion that our Supreme
Court "has consistently held that the liberty and due process protections of Sections 1 and
2 encompass the same rights protected under the Fourteenth Amendment of the Federal
Constitution. [Citations omitted.]" If our Supreme Court has truly spoken directly to this
68
issue, we must follow its holding. See Snider v. American Family Mut. Ins. Co., 297 Kan.
157, 168, 298 P.3d 1120 (2013) (Court of Appeals is duty bound to follow Kansas
Supreme Court precedent, absent some indication it is departing from previous position).
But all of the cases Hodes and Nauser cite to support their contention are factually
and legally distinguishable from the present case. The cases are factually distinguishable
because only one of them––Alpha Med. Clinic v. Anderson, 280 Kan. 903, 128 P.3d 364(2006)––deals with abortion rights. The cases are legally distinguishable because most of
them address equal protection issues, not due process issues. Most of the cases simply
assert, without further explanation, that §§ 1 and 2 of the Kansas Constitution Bill of
Rights have much the same effect as the Fourteenth Amendment concerning due process
and equal protection. See, e.g., State ex rel. Tomasic v. Kansas City, Kansas Port
Authority, 230 Kan. 404, 426, 636 P.2d 760 (1981). Some cases that apply the sections in
a due process context analyze procedural due process requirements, not substantive due
process. See, e.g., Board of Reno County Comm'rs v. Akins, 271 Kan. 192, 197, 21 P.3d
535 (2001). Although some cases analyze substantive due process under § 18 of the
Kansas Constitution Bill of Rights, Hodes and Nauser have not asserted § 18 as a basis
for an independent right to abortion. See Siruta, 301 Kan. at 774 (recognizing general
rule that a party waives an argument by failing to brief it).
Most importantly, in the one case that the Kansas Supreme Court was asked to
address the precise constitutional question before this court today, our Supreme Court
declined to reach the issue. Both parties acknowledge that our Supreme Court explicitly
stated in 2006 that it had "not previously recognized—and need not recognize in this case
despite petitioners' invitation to do so—that [a pregnant woman's right to obtain an
abortion] also exist[s] under the Kansas Constitution." See Alpha Med. Clinic, 280 Kan.
at 920. Although the court went on to note that it customarily interprets the Kansas
Constitution "to echo federal standards," Alpha is not controlling on the issues before us
today. 280 Kan. at 920. Thus, without binding precedent from our Supreme Court, we
69
must proceed to answer the question of whether the Kansas Constitution provides a right
to abortion independent of the right found in the United States Constitution.
Our Supreme Court has recognized that the Kansas Constitution and the United
States Constitution are distinct documents susceptible to distinct interpretation. See State
v. Lawson, 296 Kan. 1084, 1090-93, 297 P.3d 1164 (2013). "In ascertaining the meaning
of a constitutional provision, the primary duty of the courts is to look to the intention of
the makers and adopters of that provision." State ex rel. Stephan v. Finney, 254 Kan. 632,
654, 867 P.2d 1034 (1994); In re Tax Exemption Application of Kaul, 261 Kan. 755, 765,
933 P.2d 717 (1997). As long ago as 1876 and as recently as 2014, our Supreme Court
has recognized the vital importance of determining the intent of the framers of
constitutional language when interpreting constitutional provisions:
"'"[T]he best and only safe rule for ascertaining the intention of the makers of any written
law[] is to abide by the language they have used; and this is especially true of written
constitutions, for in preparing such instruments it is but reasonable to presume that every
word has been carefully weighed, and that none are inserted, and none omitted without a
design for so doing."'" Gannon v. State, 298 Kan. 1107, 1143, 319 P.3d 1196 (2014)
(quoting Wright v. Noell, 16 Kan. 601, 607 [1876]).
We must adhere to this long-standing principle even when interpreting language in
the Kansas Constitution which arguably corresponds to a provision in the United States
constitution. Although the Kansas Supreme Court traditionally has not interpreted our
state constitution differently than the United States Constitution, it has the right to do so.
See Lawson, 296 Kan. at 1090-93; State v. Scott, 286 Kan. 54, 93, 183 P.3d 801 (2008)
("'[W]e have the right to interpret our Kansas Constitution in a manner different than the
United States Constitution has been construed.'"). Crucial to correctly applying this
precept is recognizing that coextensive interpretation of provisions of the Kansas and
United States Constitutions is appropriate only when the provisions themselves are
similar. See State v. Schoonover, 281 Kan. 453, 493, 133 P.3d 48 (2006) ("Generally,
70
provisions of the Kansas Constitution which are similar to the Constitution of the United
States have been applied in a similar manner." [Emphasis added.]).
For example, the Fourth Amendment to the United States Constitution provides:
"The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized."
Section 15 of the Kansas Constitution Bill of Rights provides:
"The right of the people to be secure in their persons and property against
unreasonable searches and seizures, shall be inviolate; and no warrant shall issue but on
probable cause, supported by oath or affirmation, particularly describing the place to be
searched and the persons or property to be seized."
Clearly, the search and seizure provisions of the Kansas and United States
Constitutions are similar. Thus, it is no surprise that our Supreme Court has long held that
they provide the same rights and protections. See, e.g., State v. Neighbors, 299 Kan. 234,
239, 328 P.3d 1081 (2014). Our Supreme Court has also held coextensive other similar
provisions in the Kansas and United States Constitutions. See, e.g., State v. Hensley, 298
Kan. 422, 435, 313 P.3d 814 (2013) (noting that although the language of the Fifth
Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of
Rights are not identical, they are similar and have been interpreted as providing the same
protection against double jeopardy); Scott, 286 Kan. at 93 ("'The wording of [the Eighth
Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of
Rights] is nearly identical, and we will look to constructions of both provisions in
reaching our conclusions herein.'"); State v. Busse, 231 Kan. 108, 110-11, 642 P.2d 972(1982) (quoting similarly worded provisions of Sixth Amendment to the United States
71
Constitution and § 10 of the Kansas Constitution Bill of Rights and stating that the rights
in each are satisfied by the same opportunity for confrontation).
On the other hand, there are also instances in which the Kansas Constitution has
provided rights and protections different from those provided in the United States
Constitution. For example, § 6 of the Kansas Constitution Bill of Rights states: "There
shall be no slavery in this state; and no involuntary servitude, except for the punishment
of crime, whereof the party shall have been duly convicted." Section 6 was ratified in
1859 and enacted along with the rest of the original Kansas Constitution in 1861. See L.
1861, p. 48; Wyandotte Constitutional Convention, pp. 574-75 (1920). When our state
constitution was adopted, slavery was not addressed in the United States Constitution and
it was legal in many states. The majority of the framers of the Kansas Constitution
abhorred slavery and wanted Kansas to be a free state, so they drafted the constitution to
ban slavery in plain and unambiguous terms in order to accomplish their intent.
Moreover, the fact that a prohibition exists in the United States Constitution does
not necessarily mean that it also must independently exist somewhere in the Kansas
Constitution. The Supremacy Clause of the United States Constitution "invalidates state
laws that interfere with, or are contrary to, federal law." Board of Miami County Comm'rs
v. Kanza Rail-Trails Conservancy, Inc., 292 Kan. 285, 294, 255 P.3d 1186 (2011). It does
not require that state constitutions must be interpreted as conferring rights identical to the
federal Constitution because failing to guarantee a right is not the same as interfering
with or running contrary to a federal guarantee of that right. Practically speaking, the
absence in a state constitution of a right nonetheless guaranteed by the federal
Constitution will have no effect on a party's ability to seek redress if the right is violated,
as any aggrieved party may pursue relief under the United States Constitution.
On the issue of abortion rights, the provision of the federal Constitution implicated
is the liberty interest found in the Due Process Clause of the Fourteenth Amendment. See
72
Casey, 505 U.S. at 846; Roe, 410 U.S. at 152-53. Hodes and Nauser assert that §§ 1 and 2
of the Kansas Constitution Bill of Rights provide at least the same right to abortion as is
guaranteed by the Fourteenth Amendment to the United States Constitution. Under the
analysis courts have traditionally used, if the Fourteenth Amendment is sufficiently
similar to §§ 1 and 2 of the Kansas Constitution Bill of Rights, we will accede to the
plaintiffs' request and find the provisions coextensive. In ascertaining the meaning of a
constitutional provision, Kansas courts apply a textual and historical approach in order to
give effect to the intent of its framers. See State ex rel. Stephan, 254 Kan. at 654.
We first look to the language of the textual provisions. Section 1 of the Fourteenth
Amendment states, in pertinent part:
"No State shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws."
Section 1 of the Kansas Constitution Bill of Rights states: "All men are possessed
of equal and inalienable natural rights, among which are life, liberty, and the pursuit of
happiness." This language is taken from the Declaration of Independence. Wyandotte
Constitutional Convention, pp. 678-79. Initially, by simply examining the plain language
of the two provisions, we note that the language of § 1 of the Kansas Constitution Bill of
Rights is not the same as the language of the Fourteenth Amendment. Section 1 of the
Kansas Constitution Bill of Rights does not mention due process of law—the precise
clause in the Fourteenth Amendment that recognizes a right to abortion. Moreover, § 1
does not include language such as "[n]o State shall . . . deprive" any person of rights or
privileges without due process of law—language that might trigger substantive rights
under the provision. See U.S. Const. amend. XIV, § 1. Arguably, the Kansas Constitution
contains no clearly identified substantive due process clause. At least one Kansas district
73
court has examined § 1 closely and concluded that its framers did not intend it to "'furnish
a basis for the judicial determination of specific controversies.'" State ex rel. Kline v.
Sebelius, No. 05-C-1050, 2006 WL 237113, *12 (Kan. 3d Jud. Dist. Ct. January 24,
2006) (quoting Schaake v. Dolley, 85 Kan. 598, 601, 118 Pac. 80 [1911]).
Section 2 of the Kansas Constitution Bill of Rights states:
"All political power is inherent in the people, and all free governments are
founded on their authority, and are instituted for their equal protection and benefit. No
special privileges or immunities shall ever be granted by the legislature, which may not
be altered, revoked or repealed by the same body; and this power shall be exercised by no
other tribunal or agency."
Section 2 focuses on political power and a prohibition against special privileges
and immunities. It contains language similar to the Fourteenth Amendment regarding
equal protection, and our Supreme Court has long cited and applied §§ 1 and 2 in equal
protection analysis. See State v. Limon, 280 Kan. 275, 283, 122 P.3d 22 (2005); Tri-State
Hotel Co. v. Londerholm, 195 Kan. 748, 759, 408 P.2d 877 (1965); Winters v. Myers, 92
Kan. 414, 421, 140 Pac. 1033 (1914). Like § 1, however, § 2 does not contain any due
process protections of the right to liberty similar to the language in the Due Process
Clause of the Fourteenth Amendment.
We conclude that the plain language of §§ 1 and 2 of the Kansas Constitution Bill
of Rights is not similar enough to the language of the Fourteenth Amendment to find that
the corresponding provisions must be applied in the same manner. Stated differently,
although Kansas courts generally interpret provisions of our Kansas Constitution the
same as the United States Supreme Court's interpretation of corresponding provisions of
the United States Constitution, we remain unconvinced that the language of §§ 1 and 2 of
the Kansas Constitution Bill of Rights is sufficiently similar to the language of the
Fourteenth Amendment to justify coextensive interpretation.
74
We next look to the history of §§ 1 and 2 of the Kansas Constitution Bill of Rights
for additional information on the framers' intent. The Kansas Constitution was adopted at
the Wyandotte Constitutional Convention on July 29, 1859, and was ratified on October
4, 1859, by a vote of 10,421 in favor and 5,530 against. Revisor's Note to the Constitution
of the State of Kansas, p. 13. As the State points out, at the time §§ 1 and 2 of the Kansas
Constitution Bill of Rights were ratified, abortion was criminalized in Kansas. In fact, the
Territorial Legislature had outlawed certain types of abortion even prior to Kansas
obtaining statehood. See Kan. Terr. Stat. 1855, ch. 48, §§ 9-10. The first Kansas
Legislature adopted identical provisions, and statutes broadly criminalizing abortion
except when required to save the mother's life in the face of an emergency existed until
1970. See K.S.A. 21-3407 (Weeks); G.L. 1862, ch. 33, §§ 9-10.
Additionally, the Fourteenth Amendment was proposed in 1866 and ratified in
1868, whereas §§ 1 and 2 of the Kansas Constitution Bill of Rights were ratified in 1859,
7 years before Congressional debates over the Fourteenth Amendment began and 9 years
prior to the Fourteenth Amendment's ratification. See Wildenthal, Nationalizing the Bill
of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866-
67, 68 Ohio St. L.J. 1509, 1539 (2007) (discussing first proposal of Fourteenth
Amendment); Wyandotte Constitutional Convention, pp. 574-75. Clearly, the framers of
the Kansas Constitution could not have consciously intended to create rights coextensive
with the rights under the then-nonexistent Fourteenth Amendment.
Hodes and Nauser contend that we should interpret §§ 1 and 2 to encompass a
right to abortion because § 1 acknowledges the inalienable natural right to liberty. We
assume this is because the United States Supreme Court in Roe grounded its recognition
of a woman's right to terminate her pregnancy in "the Fourteenth Amendment's concept
of personal liberty and restrictions upon state action." 410 U.S. at 153. But to accept such
a broad reading of § 1 of the Kansas Constitution Bill of Rights, which does not contain
75
the same language as the Fourteenth Amendment and was ratified under different
historical circumstances, would go well beyond the apparent intent of its framers.
The judges on this court who vote to affirm the district court, or at least most of
them, conclude that §§ 1 and 2 of the Kansas Constitution Bill of Rights provide the same
protection for abortion rights as the Due Process Clause of the Fourteenth Amendment.
This conclusion is premised on the finding that the language of §§ 1 and 2 of the Kansas
Constitution Bill of Rights is sufficiently equivalent to the Due Process Clause of the
Fourteenth Amendment to justify coextensive interpretation. But this premise is flawed
because a comparison of the plain language of the two separate constitutions reveals
important differences. Our Kansas Supreme Court decisions that have stated the general
proposition that §§ 1 and 2 of the Kansas Constitution Bill of Rights have much the same
effect as the Fourteenth Amendment concerning due process and equal protection are
factually and legally distinguishable from this case and fail to support the ultimate
conclusion that the Kansas Constitution recognizes a right to abortion.
Judge Atcheson's concurring opinion agrees with our conclusion that there are
important differences between §§ 1 and 2 of the Kansas Constitution Bill of Rights and
the Fourteenth Amendment to the federal Constitution and that the two instruments
should be interpreted differently. But Judge Atcheson goes on to find that § 1 of the
Kansas Constitution Bill of Rights provides even greater protection for abortion rights
than is provided by the Fourteenth Amendment. We believe that such a broad reading of
§ 1 of the Kansas Constitution Bill of Rights is not supported either by the plain language
of the provision or by the historical circumstances under which it was adopted.
To begin to wrap up, "[i]n ascertaining the meaning of a constitutional provision,
the primary duty of the courts is to look to the intention of the makers and adopters of
that provision." State ex rel. Stephan, 254 Kan. at 654. This means that courts must do
their best to ascertain the intention of the delegates at the Wyandotte Constitutional
76
Convention who drafted our state constitution and the Kansas territorial voters who
ratified the instrument in 1859. That is not always an easy task to accomplish over 150
years after the fact. But the question we need to ask and answer is not what rights today's
judges would like to see in our state constitution. The proper question to ask and answer
is what rights the makers and adopters of the instrument intended to protect.
Simply put, there is nothing within the text or history of §§ 1 and 2 of the Kansas
Constitution Bill of Rights to lead this court to conclude that these provisions were
intended to guarantee a right to abortion. Kansas courts are authorized to interpret our
state constitution in a manner different than the United States Constitution has been
construed, and we should do so when appropriate. Our state's founders held sacred the
basic concepts of life, liberty, and the pursuit of happiness, and they expressed those
sentiments in that order in § 1 of our Bill of Rights. Even if Kansas courts were to find
substantive due process rights under § 1, as opposed to a mere expression of traditional
beliefs, we would not find a substantive due process right to abortion.
The subject of abortion places the pregnant woman's liberty interest directly at
odds with the unborn child's right to life. The balancing of these interests is a question of
public policy. Our state legislature, not an intermediate court of appeals, is the branch of
government charged with the development of public policy on behalf of Kansas citizens.
Because the Kansas Constitution provides no substantive due process right to abortion,
our legislature is free to restrict abortion procedures to the extent it finds it appropriate––
as long as the legislative act does not violate our federal Constitution. This is consistent
with the democratic process by which we govern ourselves.
Hodes and Nauser are asking this court to amend the Kansas Constitution to
include by inference a right to abortion that is not expressly found in the text of the
document. Article 14 of our state constitution provides a process for amendments to be
proposed by the legislature and approved by the electors, and our constitution has been
77
amended many times since it was originally adopted. "The Kansas Constitution is the
work of the people." Gannon, 298 Kan. 1107, Syl. ¶ 1. If Kansans want to amend our
constitution to include a state-law right to abortion, they may do so properly under
Article 14; it should not be done by judicial decree.
As Hodes and Nauser are fully aware, if they desire to seek judicial relief from the
Act for themselves and their patients, they are free to invoke the protections of the federal
Constitution. The plaintiffs are not without a legal remedy even if Kansas courts deny
their request to find a state-law right to abortion. As stated in their brief: "[T]he United
States Supreme Court has already balanced the precise issue before this Court, striking
down a ban on D & E, the very procedure banned by the Act, as unconstitutional." In
addition to the fact that our state constitution does not speak directly to the subject of
abortion, another reason Kansas courts should decline the plaintiffs' request to find a right
to abortion in the Kansas Constitution is simply because it is unnecessary for Kansas
courts to do so. The citizens of Kansas, including Hodes and Nauser and their patients,
are unequivocally protected by the Due Process Clause of the Fourteenth Amendment, as
interpreted by the United States Supreme Court. For the sake of consistency alone, we
should leave it there rather than entangling our state courts into this arena which has
divided our nation for over 40 years.
In closing, the judges who join in this opinion would hold that the Act is not
prohibited by §§ 1 and 2 of the Kansas Constitution Bill of Rights. Because we would
hold that §§ 1 and 2 of the Kansas Constitution Bill of Rights do not provide an
independent state-law right to abortion, we need not reach the question of whether the
Act unconstitutionally hinders the exercise of that right.
GREEN, HILL, BRUNS, POWELL, SCHROEDER, AND GARDNER, JJ., join in the
foregoing opinion.
78