Kansas’ Supreme Court Just Ruled That Abortion is a Constitutional Right

Reproductive justice advocates just won a major victory deep in red-state territory.

The Kansas Supreme Court has ruled that abortion is a right guaranteed by the state’s constitution. (mmrogne / Creative Commons)

The Kansas Supreme Court Friday issued a sweeping 6-1 ruling that established a broad right to abortion under the state constitution, declaring that the Kansas Bill of Rights “affords protection to the right of personal autonomy, which includes the ability to control one’s own body, to assert bodily integrity and to exercise self-determination.” 

“Today’s decision from the Kansas Supreme Court is truly historic,” Julie Rikelman of the Center for Reproductive Rights (CRR), which represents the two Kansas doctors challenging the law, said in a statement. “It recognizes that, under the Kansas Constitution, all people have the right to make their own decisions about their bodies, their health, how they form their families and their family life.”

At issue in the Kansas case was a 2015 law banning what’s known as the dilation and evacuation (D&E) procedure, which is used for about nine percent of abortions performed in Kansas and 95 percent of second-trimester abortions nationwide, with very few exceptions—only when necessary to protect the woman’s life or in the case of a “serious risk of substantial and irreversible physical impairment of a major bodily function.”

Alternatives to the D&E procedure, ruled the lower court, “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.”

The American Congress of Obstetricians and Gynecologists, which filed a brief in support of the doctors challenging the Kansas law, also opposes D&E procedure bans. “These restrictions represent legislative interference at its worst: doctors forced, by ill-advised, unscientifically motivated policy, to provide lesser care to patients,” the organization has declared. “This is unacceptable.”

Kansas, where 10 years ago an anti-abortion extremist assassinated abortion provider Dr. George Tiller, was the first state to pass a ban of this kind. (Another 11 states have since passed similar laws.) But this was far from the state’s first attempt to restrict abortion.

Kansas mandates biased counseling that requires abortion providers to tell their patients inaccurate information about abortion, including disproven claims linking abortion to breast cancer, inaccurate portrayals of risk to future fertility, false information about negative psychological effects and unfounded claims regarding fetal pain. Kansas also requires abortion providers to perform an ultrasound on any woman seeking an abortion and offer her the opportunity to view the image, and requires that patients wait 24 hours after counseling before accessing an abortion. For young women, the state requires those under 18 to obtain parental consent in order to exercise their constitutional right to such care.

All of these laws are vulnerable to challenge under the Kansas Supreme Court’s ruling last Thursday. “Nearly all of the abortion restrictions in the state,” Elizabeth Nash, an abortion legislation expert at the Guttmacher Institute, told the New York Times, “could be challenged and struck down with this ruling.”

In the decision, the Supreme Court analyzed Section 1 of the Kansas Constitution Bill of Rights that guarantees “equal and inalienable natural rights, among which are life, liberty and the pursuit of happiness.” In a fascinating, 87-page opinion, the majority delves into the history of the meaning of “inalienable natural rights,” going all the way back to John Locke; quoting Sir Edward Coke, William Blackstone, Edmund Burke, James Madison and Chancellor James Kent; describing debates at the 1859 Constitutional Convention in Kansas; and analyzing case law from Kansas and other states across the country as well as federal case law.

The Court concluded that the meaning of the inalienable natural right to liberty definitively includes the right to personal autonomy and bodily integrity, including the right to make decisions about parenting and procreation and the right of a pregnant woman to control her own body, and that abortion restrictions violate the Kansas Constitution because they could “impose an obligation on an unwilling woman to carry out a long-term course of conduct that will impact her health and alter her life” and could cause “discomfort and pain and, for some, can bring serious illness and even death.”

The Kansas Supreme Court decision cannot be appealed, and would stand even if the U.S. Supreme Court were to overturn Roe v. Wade. With Brett Kavanaugh on the Supreme Court and several abortion cases in the pipeline, state-level protections like the Kansas case are more important now than ever. 

“This decision makes clear that attempts to undermine the right to abortion by banning safe and accepted methods of abortion cannot stand,” CRR President and CEO Nancy Northup said in a statement. “Every woman has a right to make her own decisions about her health and family free from political interference.”

In response to the decision, those opposed to abortion rights are vowing to amend the Kansas Constitution to bar women’s access to safe and timely health care—but the newly-elected Democratic Governor of Kansas, Laura Kelly, applauded the decision.

“While federal law has long guaranteed every woman the right to make their own medical decisions in consultation with their health care providers,” she said. “I’m pleased that the Kansas Supreme Court’s decision now conclusively respects and recognizes that right under Kansas law as well.” 

About

Carrie N. Baker is Professor and Director of the Program for the Study of Women and Gender at Smith College. Her 2007 book The Women's Movement Against Sexual Harassment won the National Women’s Studies Association Sara A. Whaley Book Prize. Her second book, Fighting the US Youth Sex Trade: Gender, Race and Politics, tells the story of activism against youth involvement in the sex trade in the United States between 1970 and 2015.