Case: Hodes & Nauser v. Schmidt

Court: Kansas Supreme Court

Citation: 440 P.3d 461 (Kan. 2019).

Holding: An often-cited model for progressive consideration of historical evidence, in Hodes, the Kansas Supreme Court upheld a temporary injunction against a state law prohibiting dilation and evacuation abortion procedures as a likely infringement upon a fundamental right to personal autonomy protected under the state’s constitution.

Constitutional Claim: Personal autonomy under Section 1, which provides: “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”

Key Reasoning: Analyzing whether Kansas’s constitution provides a fundamental right to abortion, the court reviewed the text and history of the relevant state constitutional protection.  The court determined that the provision is traceable to Lockean natural and inalienable rights guarantees, which are broader than the protections of the U.S. Constitution’s 14th Amendment and recognize a “right of personal autonomy, which includes the right to control one’s own body, to assert bodily integrity, and to exercise self-determination.”  Id. at 471-81, 497.  The court concluded that this right necessarily encompasses the decision of whether to continue a pregnancy given the impact of that decision on personal autonomy.  Id. at 484-86.

The court rejected Kansas’s argument that the existence of statutes criminalizing abortion when the state constitution was adopted indicate its protections do not include a right to abortion. The court reasoned that there was no historical evidence that the abortion statutes reflected the will of the people, the statutes were never tested for constitutionality, and they arose from sex-differentiated rights recognized at that time but that are now understood as discriminatory. Id. at 488-90. The court observed that “true equality of opportunity in the full range of human endeavor is a Kansas constitutional value, and it cannot be met if the ability to seize and maximize opportunity is tethered to prejudices from two centuries ago.”  Id. at 491. Summarizing its interpretative approach, the court explained that “rather than rely on historical prejudices in our analysis, we look to natural rights and apply them equally to protect all individuals.”  Id. at 491.

Case Status/Subsequent History: On remand of the case to the trial court for a full merits determination, the trial court held that the law violated the Kansas constitution. The state supreme court affirmed, concluding in a 2024 decision, Hodes & Nauser v. Kobach, 318 Kan. 940 (2024), that Kansas had not met its burden to show that the restriction on the abortion procedure was narrowly tailored to furthering a compelling state interest, and reiterating that the state’s constitution protects a fundamental right to personal autonomy, which includes a pregnant person’s right to terminate a pregnancy.