Decision coming soon in challenge to Kansas Unborn Child Protection from Dismemberment Abortion Act

By Dave Andrusko

When last NRL News Today wrote about the pro-abortion challenge to SB 95, the Unborn Child Protection from Dismemberment Abortion Act, the seven-member Kansas Supreme Court had just heard the contention that there is a right to abortion in the Kansas state Constitution.

A decision reportedly may be coming down as early as this Friday.

SB 95 bars a gruesome method of abortion in which a well-developed, living, unborn child is torn apart piece by piece with sharp metal tools until she bleeds to death. An Unborn Child Protection from Dismemberment Abortion act is on the books in eight states–Arkansas, Louisiana, Kansas, Mississippi, Alabama, Texas, Oklahoma and West Virginia.

As NRL News Today has reported [here; here; and here], pro-abortionists have taken to the courts to challenge these laws. What makes the Kansas case unique is that it is based on a right allegedly found in a state constitution.

SB 95 was signed into law in Kansas in April 2015. Two months later Shawnee District Court Judge Larry Hendricks issued a temporary injunction. In January 2016, a split decision of the Kansas Court of Appeals left Judge Hendricks’ injunction in place.

In oral arguments Solicitor General Stephen McAllister vigorously disagreed with the plaintiffs. He told the justices that abortion supporters want the Kansas Supreme Court to engage in a brand of judicial activism that ignores both the text of the state’s constitution and the history of pro-life laws enacted in Kansas.

“If the people of Kansas want to create a constitutional right to abortion, they have a ready mechanism for doing so — the constitutional amendment process. Kansans have not been shy about utilizing it,” he said.

Representing the father/daughter abortion team of Herbert Hodes and Traci Nauser, Janet Crepps of the New York-based Center for Reproductive Rights countered by asking the justices to declare a “fundamental” right to abortion even broader than that created by Roe v. Wade, based on a “liberty” interest which has “evolved” during the nation’s “march to progress.”

In the state’s amicus brief, McAllister responded to a “friend of the court” brief filed by the ACLU that argued there is a right to abortion in Section 1 of the Kansas Constitution’s Bill of Rights:

At bottom, the ACLU’s amicus brief ignores the long-standing directive from this Court regarding constitutional interpretation: When construing a provision of the Kansas Constitution, Kansas courts must look to the intention of the makers of the provision (the Legislature or, in this case, the framers at the convention) and the intention of the adopters, i.e., the people of Kansas at the relevant time. See In re Application of Kaul, (In “ascertaining the meaning of a constitutional provision, the primary duty of the courts is to look to the intention of the makers (the legislature) and the adopters (the voters) of that provision.”). Applying these principles here, it is clear that Section 1 was never intended to create a right to abortion under Kansas law.

McAllister then concluded

Before this case, no Kansas court had ever found a right to abortion under the Kansas Constitution. The language and history of the state constitution provide no support for such a right. The people of Kansas rely on the Kansas Supreme Court—as the “guardian of the [people’s] Constitution”—to give effect to the will of Kansans, as evidenced by the language and history of the Kansas Constitution. Brown v. Wichita State Univ., 219 Kan. 2, 13, 547 P.2d 1015 (1976). Here, the lower courts failed to fulfill that obligation. Put simply, the Kansas Constitution does not provide a right to abortion. To the contrary, the district court and the Court of Appeals “created” such a right.