In a fascinating decision weighing the relative value of government authority versus natural human rights, the Supreme Court of Red-state Kansas on April 26 ruled 6-1 to uphold the sovereignty of women over their own bodies.
Yet, as with all debates over abortion, what’s often left unspoken in the dense din of legalese is possibly what’s most essential to understanding: that at the heart of anti-abortion sentiments is the idea that all human life is blessed by the divine and thus sacred and inviolate, starting at fertilization. That is what they are fighting for when they talk about “states’ rights” and government authority. It’s the authority to restrict human rights.
The Washington Post reported:
“Judges ruled 6 to 1 on Friday that the Kansas constitution protects the ‘right of personal autonomy,’ meaning state law cannot abridge the right ‘to control one’s own body, to assert bodily integrity, and to exercise self-determination. This right allows a woman to make her own decisions regarding her body, health, family formation and family life — decisions that can include whether to continue a pregnancy.’”
The decision made permanent an earlier ruling in July 2015 by Shawnee County District Judge Larry D. Hendricks blocking enactment of a 2015 law passed by the Legislature — the Kansas Unborn Child Protection from Dismemberment Abortion Act — that banned an abortion procedure known as “dilation and evacuation” (D&E). The procedure, in which an aborted fetus is dismembered with surgical tools before removal from the uterus, accounts for about only 9 percent of Kansas abortions and the safest second-trimester abortion technique, according to physicians.
In imposing an injunction, a temporary block, on the law, Judge Hendricks ruled that the Kansas Bill of Rights “independently protects the fundamental right to abortion.” Hendricks also ruled, online news site NPR.org reported, that D&E alternatives were not reasonable and “would force unwanted medical treatment on women, and in some instances would operate as a requirement that physicians experiment on women with known and unknown safety risks as a condition (of) accessing the fundamental right of abortion.”
Judge Hendricks decision was later upheld on a second appeal, but the court was split 7-7, which legally confirmed the original decision.
Kansas statute first in nation
The now-impotent Kansas law was the first in the nation to ban D&E, which is used in 95 percent of second-trimester abortions. The law allowed exceptions to preserve the mother’s life or prevent impairment of her major bodily functions, or when the fetus was already dead.
Proponents of the law argued that the structure of Kansas’ legal system gave the Legislature, as the political representative of all the state’s citizens, primary authority to determine the legality of practices in which the whole citizenry had a shared stake, such as D&E.
However, the Kansas Supreme Court disagreed, ruling:
“We conclude that, through the language in [Section I of the Kansas Constitution’s Bill of Rights], the state’s founders acknowledged that the people had rights that preexisted the formation of the Kansas government. There they listed several of these natural, inalienable rights—deliberately choosing language of the Declaration of Independence by a vote of 42 to 6.”
When to abort?
Yet, although D&E is mostly allowed, there are many states with laws on the books generally shortening the legal gestation period for abortion. The Atlantic reported:
“There’s a kind of national mean on abortion limits in the United States—a significant majority of states, from the most conservative to the most liberal, ban the procedure somewhere between 22 weeks and viability, which ‘most obstetrician-gynecologists understand … as occurring near 24 weeks gestation,’ according to American Congress of Obstetricians and Gynecologists. There are only seven states—Alaska, Colorado, New Hampshire, New Jersey, New Mexico, Oregon, and Vermont—that don’t limit abortion by gestational age at all. And only three let women wait until their third trimester begins, around 28 weeks.”
The lawsuit challenging the 2015 Kansas law was filed by father-daughter physicians Herbert Hodes and Traci Nauser, who then operated a women’s health center in the Kansas City suburb of Oakland Park. Hodes is now retired.
The landmark abortion case — Roe v. Wade — was decided by the U.S. Supreme Court, 7-2, in 1973, affirming that access to safe and legal abortion is a constitutional right and prohibiting its “unduly restrictive state regulation.”
Before the mid-1990s, Kansas was “one of the least abortion-restrictive states in the country,” according to NPR.org, and the city of Wichita was home to one of the nation’s few third-trimester abortion providers, Dr. George Tiller. He was assassinated by an anti-abortion zealot in 2009.
Read the full 199-page Kansas Supreme Court D&E decision in the case here, including the lone dissenting opinion by Justice Caleb Stegall. It expansively illustrates the mind-numbing complexity of legal issues related to abortion as very smart people explain their positions in detail.