In Hodes & Nauser MDs, P.A. v. Kobach, (KS Sup. Ct., July 5, 2024), the Kansas Supreme Court, in a 5-1 decision, held that a 2015 statute that bans (except in limited circumstances) so-called "dismemberment abortions" violates the Kansas state constitution. The court said in part:
S.B. 95 effectively bans a common method of second-trimester abortion called Dilation and Evacuation except when a D & E is "necessary to preserve the life of the pregnant women" or to prevent a "substantial and irreversible physical impairment of a major bodily function of the pregnant woman."...
The State devoted much of its brief to inviting us to reverse our earlier ruling in this case that the Kansas Constitution protects a right to abortion. We decline the invitation....
The State has not carried its burden to establish S.B. 95 is narrowly tailored to furthering any compelling interest.
Justice Wilson filed a concurring opinion, saying in part:
I write separately because I believe S.B. 95 is unconstitutional, though for a different reason than the majority. In my view, this purported law is unconstitutionally vague, leaving a doctor vulnerable to criminal culpability, while providing dubious notice and insufficient explanation to the doctor of what conduct is criminalized. Thus, prosecutors and juries determine retroactively when and how S.B. 95's rules are violated.
Justice Stegall dissented, saying in part:
First, it is noteworthy that the majority cannot bring itself to acknowledge the government's compelling interest in unborn human life. Yes, the majority maneuvers around this problem by skipping it in favor of its narrow tailoring analysis. But the truth is, the majority doesn't answer this question because it is so decidedly troublesome to the majority's new section 1 regime. For the majority, an interest in protecting unborn life— including the dignity of that life—is only "aspirational" with "many nuances and facets" that have "potentially far-reaching precedential effect."... For those unfamiliar with legalese, this translates to, "We don't want to tie our hands with such inconveniences."
In a second 5-1 decision in Hodes & Nauser, MDs. P.A. v. Stanek, (KS Sup. Ct., July 5, 2024), the Kansas Supreme Court, in majority and dissenting opinions covering 114 pages, struck down "a series of statutes and implementing regulations ... relating to licensure of abortion provider facilities." The court said in part:
... [T]he State failed to meet its evidentiary burden to show the Challenged Laws further its identified compelling interest in protecting maternal health and regulating the medical profession as it relates to maternal health. Without this showing, the Challenged Laws do not survive strict scrutiny and are constitutionally infirm. We decline the State's request to sever the unconstitutional licensure requirements because the State failed to meet its burden to show severability is proper under applicable Kansas law. Finally, we deem it unnecessary to address the district court's finding of an equal protection violation because we are affirming the district court's decision on grounds that the State failed to satisfy its burden to show the Challenged Laws further a compelling state interest....
Justice Rosen and Justice Biles each filed a concurring opinion.
Justice Wilson filed a concurring opinion, saying in part:
... I am duty bound to follow the clear and essential path illuminated by our precedent. This is necessary to protect the stability, predictability, and trust in our legal system. My decision to do so is further buttressed by the people's vote on this very matter, which can be interpreted as a repudiation of legislative attempts to eliminate the core holdings of Hodes I—holdings which survive today's confusing and troubling revisions.
Justice Stegall filed a dissenting opinion, saying in part:
The saga of this court's section 1 jurisprudence has now taken its bizarre—but predicted—turn. Recall I wrote at the conclusion of my lengthy dissent in Hodes I that a legal regime of unrestricted access to abortion is now "the judicially preferred policy tail wagging the structure of government dog" and, as such, every rule and even judicial coherence and consistency will "give way, at every turn, to the favored policy." ... Should proof of this claim be required, one need look no further than the pudding of today's decision.... The betrayal of this court's promise of neutral, uniform, and rational constitutional adjudication is as far-reaching as it is audacious—and its damaging impact on this institution's legitimacy will be felt for years to come.
UPI reports on the decision.
