Monday morning, the Kansas Supreme Court heard arguments in two cases testing the limits of abortion rights. It did not appear to go well for the state’s attorney who sought to undermine a woman’s right to choose.
At issue are two state laws that remain unenforceable as long as there’s a constitutional right to abortion in Kansas. One would ban dilation and evacuation abortions. The other established unreasonably burdensome regulations on abortion providers. Lower courts ruled both laws unconstitutional.
These cases probably never should have even gotten to the state’s top court. Abortion is a matter of settled constitutional law in Kansas. In 2019, the state Supreme Court ruled that the state constitution protects the right to abortion. Laws that would limit that right must pass the highest scrutiny.
That isn’t just the view of the court — it’s the view of the people, too. In August, Kansas voters soundly rejected a proposed constitutional amendment that would have allowed lawmakers to revoke the right to abortion.
Antiabortion activists aren’t about to let little things like the will of the people and the Kansas Constitution stop them from imposing their morality on Kansas at the expense of women’s health and safety. The U.S. Supreme Court has overturned Roe v. Wade, which protected a federal right to abortion for 50 years. Maybe the Kansas Supreme Court would do the same.
It’s always risky predicting how justices will rule based on oral arguments, but they certainly appeared skeptical of the state’s case on Monday.
Solicitor General Anthony Powell, who argued for the state, had plenty of graphic imagery and talk about “protecting the value and dignity of human life,” but less serious legal argument.
One of the most striking moments came when Powell admitted that the state’s view is that Section 1 of the Kansas Constitution’s Bill of Rights is meaningless.
For those who haven’t read the state constitution lately, that’s the bit that says: “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”
In its 2019 abortion decision, the high court ruled that Section 1’s fundamental rights include personal and bodily autonomy. In other words, a woman has a right to choose whether to continue a pregnancy.
Justice Caleb Stegall asked Powell if the state disagreed. Is Section 1 a glittering generality, essentially meaningless puffery, mere smoke?
Powell — and presumably his boss, Attorney General Kris Kobach — choose puffery. “Section 1 isn’t enforceable in a general matter,” Powell said. “It’s hard to truly make it into a discernible right that can be enforced. That’s our position.”
Kansans should let that sink in. “Life, liberty, and the pursuit of happiness” aren’t fundamental rights to extremists like Powell and Kobach, at least not if recognizing those liberties entails allowing people to make their own decisions about abortion.
Fortunately, the Kansas Supreme Court has ruled otherwise. The liberties in Section 1 have meaning because they are part of the state’s foundational legal document.
Powell took the court on a wild ride down a slippery slope warning that if bodily autonomy is a constitutional right, laws requiring vaccines or regulating alcohol, tobacco, marijuana and even hard drugs all could fall. If abortion rights stand, Kansas is on the road to becoming a hedonistic haven for all sins, a modern Sodom or Gomorrah. It was a ludicrous argument, but revealing of just how far off the rails some antiabortion activists have gone in their thinking.
Ideologically, the court is little changed since it ruled on abortion last time. There are three new justices, but they were appointed by a Democratic governor. One of them, Justice Keynen “K.J.” Wall Jr. recused himself from these cases, but the odds are low that the remaining six justices will split 3-3.
Kansans have inalienable natural rights, including a right for women to choose whether to carry a pregnancy to term. That’s the precedent; that’s the law; that’s the Kansas Constitution. The state Supreme Court recognized that four years ago, and it should do so again.
