Guest Commentary

Kansas Supreme Court’s abortion decision is more complex than the political arguments

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A little over a week ago, the Kansas Supreme Court handed down its decision in Hodes & Nauser v. Schmidt, the case which obliged them to rule on whether or not Kansas’ state constitution included the right for a woman to have an abortion. It includes three different opinions — one by the majority, one concurrence, and one dissent — spread over 199 pages, all of which are filled with careful, challenging and sometimes frustrating examples of legal argument. Having read the whole thing, I can assure you: the decision here was anything but simple.

Yet on Friday, my own west Wichita representative in the Kansas House, Dan Hawkins, denounced the court’s ruling in highly simplistic terms, calling it an act of “dictators” bent on “dehumanization” in a Wichita Eagle column. His argument was impassioned, and not entirely wrong, but I think tendentious all the same. So, since Kansas Supreme Court justices never comment on their own opinions, allow me a brief explanatory retort.

Does the decision by the court majority allow for “unrestricted late-term abortion up to the point of birth,” as Hawkins wrote? No. In fact, the focus of this case wasn’t abortion policy at all, but rather the constitutional terms under which abortion policies are to be made. The original argument — specifically, over what level of justification the state of Kansas must provide in passing a law which bans a particular type of otherwise legal abortion procedure (in this case, the procedure normally used in rare, medically necessary cases of late-term abortions) — ends with the majority sending the case back to district court. They note that the lower court has “a heavy task ahead of it,” in that it will have to consider this Kansas law in the face of scientific advances in fetal viability on the one hand and the clear right of women to control their bodies on the other.

So what about that right? Hawkins is obviously correct in noting that the Kansas Constitution includes “no language of the sort.” Here is where things get interesting.

Abortion rights were established by the U.S. Supreme Court nearly a half-century ago on the basis of the right to “privacy,” which it interpreted out of other guarantees in the Bill of Rights. Over the decades, debates over privacy in regards to abortion has led that court to modify its original ruling, developing a test which allows state legislatures to pass laws which restrict abortion rights in the name of protecting fetal life, so long as doing so does not pose an “undue burden” on a woman’s freedom of choice. The majority on the Kansas Supreme Court acknowledges this line of reasoning, allows that the Kansas Constitution incorporates this currently reigning interpretation of privacy rights, and then dismisses it, claiming instead that our state constitution provides something even stronger: an inalienable natural guarantee of complete bodily autonomy.

This is a rather audacious thing for a state court to claim, in particular because it introduces a host of questions that the court provides no guidance for. (Is “bodily integrity” to be understood as solely referring to the right of women to control their own pregnancies, or does it also imply that any Kansas law which places restrictions on what people choose to do with their bodies — like, that I must clothe my body while in public places, or that a child’s body must be vaccinated before she attends elementary school — must be presumed to be unconstitutional?) Here I am very sympathetic to the concurrence opinion, which agreed with the majority that state abortion laws must take into consideration the rights of women, but argued that elevating rights regarding something as fraught as abortion to such a high level, ignoring the definitions and qualifications which the U.S. Supreme Court has introduced, creates more legal problems than it solves.

Finally there is the dissent. Hawkins condemns the majority for never addressing the elephant in the room: “the loss of life that occurs when an abortion takes place.” But of course, the dissent didn’t address it either, because, again, that wasn’t what was legally at issue. In crafting his tour de force dissent, Justice Caleb Stegall remained firmly focused on the case before him..

Thus Stegall spent little time discussing abortion itself, and instead produced a historical and theoretical argument which presents rights as something citizens already possess, and thus may legislatively extend or limit as they democratically prefer, rather than as something that reflect, to quote Stegall, “fundamental values” (such as an abortion-supporting right to bodily autonomy) which the courts must protect against invasive majorities. On this point, Hawkins’ column, like Stegall’s dissent, connects with an old and honorable argument. As someone who teaches these ideas regularly, I’m fascinated with the dissent’s contribution to this debate (personally, I find much of his theory highly persuasive, but his history much less so). In any case, it remains an argument about the way we discuss abortion, not an argument about abortion itself.

The law is hard, and for better or worse, has become the place where we send our hardest disputes. That doesn’t mean you’re obliged to respect the decisions of any particular court, or the way it decides them; I certainly don’t. But rather than reducing the complexity of what courts do to simplistic political arguments, let’s at least credit them for taking seriously the particular questions before them. Then afterward, we can let the political chips fall where they may.

Dr. Russell Arben Fox is a professor of political science at Friends University.
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