Last week, a 6-1 majority of the Kansas Supreme Court handed down a disturbing decision that epitomizes judicial activism. In Hodel and Nauser v. Schmidt, the Court upheld a lower court injunction against a Kansas law that banned dismemberment abortions.
In this poorly-reasoned decision, the justices stepped out of their proper role of interpreting a constitution and into the role of constitutional drafter – creating new constitutional rights where none existed before. Unfortunately, the Kansas decision is part of a disturbing national trend.
The Court found an unwritten, invisible right to abortion in the following phrase of the Kansas Constitution: “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”
From this one phrase, the Kansas Justices extracted the hither-to unrecognized “right of personal autonomy, which includes the ability 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 apregnancy.”
In other words, the Court created out of whole cloth a new right of personal autonomy and controlling one’s own body. Does this newly-minted right also protect the use of recreational drugs, or committing suicide? Who knows? It depends upon the ideological proclivities of the Justices rendering the decision.
This sort of judicial decision making undermines the foundation of a constitutional republic. In our system of government, we the people are supposed to determine what is, and is not, included in a constitution. Justices do not have the authority to create constitutional rights or powers where none existed before.
Doing so usurps the prerogative of the people. Indeed, in the state constitutions of every state but Delaware, the constitutional decisions of the people are direct – the people of the state vote on popular referendums on what their state constitution contains.But the people of Kansas never voted to create a constitutional right to an abortion.
Nor did they vote to put an amorphous right of personal autonomy in the Kansas Constitution. Indeed, shortly after the Kansas Constitution was drafted and approved by popular vote in 1859, the Kansas Legislature of 1862 (which included many of the drafters of the Constitution) enacted a law criminalizing abortion.
Clearly, the people of Kansas at the time didn’t think their Constitution protected the right to an abortion.
Justice Caleb Stegall wrote a searing dissent, criticizing the majority for “abandon[ing] the original public meaning” of the Kansas Constitution and “arbitrarily grant[ing] a regulatory reprieve to the judicially privileged act of abortion.”
He summarized the majority’s ahistorical reasoning in stark terms: “[T]he story told by the majority is a strange one. In it, all the luminaries of the western legal tradition— from Sir Edward Coke and William Blackstone to Edmund Burke and Thomas Jefferson—would celebrate and enshrine a right to nearly unfettered abortion access.
In this imagined world, the Liberty Bell rings every time a baby in utero loses her arm.” A pro-life (or pro-constitution) reader of this column might console himself or herself by thinking that at least this nonsense is confined to Kansas. Unfortunately, that is not the case.
Activist courts in several other states have similarly invented a state-level right to abortion.
The Kansas Supreme Court relied in part on the recent 2018 decision of the Iowa Supreme Court in Parenthood Planned v. Reynolds. The Kansas Court also relied on similar judicial decisions inventing state constitutional rights to procure abortions in Illinois, California, Alaska, and Tennessee. What has emerged is the new battle front in the national judicial war over abortion.
Pro-abortion attorneys have realized that state constitutional rights can be even broader than equivalent rights in the United States Constitution, and there are plenty of judicial activists sitting on the high courts of the various states.
Consequently, if the United States Supreme Court were to further limit, or even end, the federal abortion right of Roe v. Wade and Planned Parenthood v. Casey, state-level abortion rights would nonetheless continue to be expanded by activist judges without any input from we the people in those states.
The Kansas decision clears the way for the violent act of dismemberment abortion. It also does violence to the Kansas Constitution. Unfortunately, more states are likely to follow.
Kris W. Kobach served as the Secretary of State of Kansas from 2011 to 2019. Prior to that, he was a professor of constitutional law at the University of Missouri-Kansas City from 1996 to 2011. An expert in immigration law and policy, he coauthored the Arizona SB-1070 immigrationlaw and represented in federal court the 10 ICE agents who sued to stop President Obama’s 2012 DACA amnesty. His website is kriskobach.com.
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