The legislative activity around abortion in the past few weeks has been dizzying and disturbing, as some states compete to pass the most unconstitutional and most draconian abortion laws in the hopes of spurring the newly composed U.S. Supreme Court to overturn Roe v. Wade. There’s every reason to believe these states—so far including Alabama, Arkansas, Georgia, Kentucky, Mississippi, Missouri, Ohio, and Utah—will ultimately be successful, as Justice Brett Kavanaugh, with a record of undermining abortion rights, replaced Justice Anthony Kennedy, who repeatedly voted to uphold them. Unless and until the Court rules in a way that abolishes or narrows the fundamental right of women to terminate a pre-viability pregnancy, these new laws are unconstitutional and will be enjoined by lower federal courts. The laws will lie in wait for a future ruling that allows them to leap from the shadows and curtail women’s rights and health.
Shifting Terrain, Steady Attitudes
One might be tempted to conclude that this flurry of extreme anti-abortion activity is the product of a shift in public opinion against abortion rights. Not so. Support for Roe v. Wade has been rising steadily, with 73% of Americans saying they support it in recent polls. Support is broad regardless of gender, religious affiliation, and race. Support is stronger among Democrats and Independents, but about half of Republicans support Roe as well—support runs 47/52 even among Trump supporters. Many people who believe women should have a right to terminate a pregnancy identify as “pro-life.” They simply do not believe that their views are binding on others. The strict anti-abortion stance pursued in state legislatures is not a position with majority support; it reflects, rather, deep flaws in our voting system that permits the election and re-election of representatives despite pursuit of laws and initiatives without majority support.
Meanwhile, more quietly, abortion rights have received a boost in several states. As I have written about in detail, New York passed the Reproductive Health Act into law on January 22, 2019, the forty-sixth anniversary of the Supreme Court’s historic ruling in Roe v. Wade. The New York law shores up reproductive rights so they will be protected even if Roe v. Wade is overturned.
New York was one of the states to legalize abortion before the Roe v. Wade ruling was issued in 1973. The New York law passed in the 1970s remained valid until replaced by the Reproductive Health Act earlier this year. The new law has three key components. First, it takes abortion law out of the criminal code and places it among public health laws. Second, it expands the type of providers who can perform abortions—from only licensed physicians to any licensed, certified, or authorized health care practitioner for whom abortion is within the scope of their practice. Third, although existing state law permits abortions without restriction before the 24th week of pregnancy, the new law permits them later if necessary to protect a woman’s health or in the case of a non-viable fetus. The law will both shore up abortion rights that might lose federal protection and expand access in some cases. Other states—including Vermont, Illinois, Nevada, New Mexico, and Rhode Island—have been moving in a similar direction, either considering new laws to protect abortion access or repeals of old laws that might go back into effect if Roe is overturned.
A Struggle over Abortion in Kansas
What about Kansas? The most notable development there comes from the Kansas Supreme Court rather than the state legislature. In Hodes & Nauser, MDS v. Schmidt, the state’s highest court held that the Kansas state constitution protects women’s fundamental right to make decisions about parenting and procreation, as well as their personal autonomy. Any restriction on abortion, the court held, merits strict scrutiny—a standard that is more protective than the U.S. Constitution under current jurisprudence.
This opinion was issued in a case testing the constitutionality of a 2015 state law, S.B. 95, which prohibits physicians from performing an abortion method known as Dilation and Evacuation (D&E) except when “necessary to preserve the life of the pregnant woman” or to prevent a “substantial and irreversible physical impairment of a major bodily function of the pregnant woman.” Physicians who provide abortions, including ones that use this method, filed a lawsuit challenging the constitutionality of the ban. They won—with an opinion that broadly protects abortion rights in the state of Kansas.
It is important to understand a little bit about abortion procedures and a little bit about federal abortion law in order to understand the import of this recent ruling.
Before the Supreme Court’s 1973 ruling in Roe v. Wade, abortion was largely criminalized by American states. There had been a significant movement to liberalize abortion laws before Roe, but that ruling took the number of states that legalized abortion from about one-third to 50 overnight. In Roe, Justice Blackmun wrote for the majority and declared that the Fourteenth Amendment’s Due Process Clause protected a woman’s right to terminate a pregnancy, at least up to a certain point. Roe embraced the trimester framework, under which states could not regulate abortion during the first trimester; could regulate it only to preserve the woman’s health during the second; and could regulate or restrict it completely, unless abortion was necessary to save the life or health of the woman, during the third trimester because its interest in protecting fetal life becomes compelling when the fetus reaches the point of viability—that is, the point when the fetus could survive outside the womb.
The Supreme Court has heard many abortion cases over the years, but perhaps none more important after Roe than Planned Parenthood v. Casey (1992), in which it considered one of many newly restrictive abortion laws designed to spur the overturning of Roe (much like we see today, but less extreme). In that case, the Court reaffirmed the basic principle of Roe, but revised the framework for analyzing the constitutionality of abortion restrictions. Under the standard announced in Casey, the state’s interest in protecting fetal life attaches at the outset, rather than only when the fetus reaches viability. Before viability, the state can regulate abortion as long as it does not impose an undue burden on a woman’s right to terminate a pregnancy. After viability, the state can restrict abortion entirely if it maintains an exception to preserve the life or health of the mother. Applying the new standard, the Court upheld provisions of the law mandating pre-abortion counseling and a waiting period, as well as a provision requiring parental consent for minors (with a judicial bypass option), but struck down a provision requiring married women to notify their husbands before obtaining an abortion.
Anti-abortion activists continued to push the limits, seeking to queue up more tests of Roe/Casey’s vitality. One branch of attack involved restrictions on a particular method of abortion, the “dilation and extraction” method (also called intact D&E by doctors and referred to by anti-abortion activists as “partial-birth abortion”). The gist of this procedure is that fetal life is terminated after the fetus has partially left the uterus. This is a second-trimester method of abortion, after the window for less invasive procedures has closed. Some states adopted a ban on this method, and Congress eventually adopted a federal ban in 2003.
The Supreme Court upheld the federal ban in Gonzales v. Carhart, even though the law did not contain an exception to preserve the woman’s health (only her life). The Court did not overrule Roe or Casey, but reasoned that the government could ban a method of abortion as a means of conveying their respect for fetal life because it had has a legitimate concern over the lack of information women will likely receive from their physicians about D&E and intact D&E. Physicians, the Court explained, may prefer not to tell women the “precise details” of a procedure that is already “so fraught with emotional consequences.” Doctors could always, Congress claimed and the Court believed, perform the standard D&E procedure. Thus, removing one method of abortion did not impose an undue burden on women seeking a pre-viability abortion because doctors would still have one common and safe method at their disposal.
In an effort to eliminate second-trimester abortion (despite protection under Roe/Casey until viability, which is well into the second trimester, if not the third), some states have passed laws to prohibit D&E abortions as well. Texas passed such a law, and a federal court has enjoined it on the likelihood that it will be deemed unconstitutional after a full trial on the merits. The court’s ruling explained that a ban on the sole remaining method of abortion would impose an undue burden on women seeking to obtain a constitutionally protected abortion in the second trimester. (Read more about this case here.)
The Kansas Supreme Court Interprets the Kansas Constitution
Back to Kansas. Like Texas, the Kansas legislature passed a ban on standard D&E abortions, the method used in 95% of second-trimester abortions. The doctors who sued claimed that the law violates the fundamental right to liberty protected by the Kansas constitution. In response, the state asserted that although the state could not interfere with a woman’s right to decide whether to continue a pregnancy under the federal Constitution and the ruling in Roe, the Kansas constitution contains no such protection. The state argued in the alternative that even if the state constitution protected the right to abortion, it was not violated by a ban on this particular method.
The trial court issued a temporary injunction, finding that the law was likely to be deemed in violation of the state constitution after a full trial on the merits. The appellate court was evenly divided, which meant that there were not enough votes to overturn the lower court’s injunction. The state’s highest court then reviewed the case, which turned primarily on whether the state’s constitution protects the right to terminate a pregnancy.
State constitutions and the federal Constitution operate in tandem. With respect to individual rights, the federal Constitution sets a floor beneath which state legislatures cannot go; but states are free to provide greater protection than guaranteed under the federal Constitution. State courts often interpret standard constitutional provisions like equal protection or due process to be co-extensive with the federal constitution’s provisions, but they are not required to do so. In the abortion context, state protections are not as relevant if Roe/Casey stands—the federal Constitution does much of the work of reining in state legislatures that want to restrict abortion access. But if those cases were overruled or narrowed, state protections (and state bans) would become immediately significant.
The Kansas Supreme Court began its opinion by noting that it had never definitely decided whether the state constitution protects the right to terminate a pregnancy. State courts had treated sections 1 and 2 of the state constitution as having “much the same effect” as the Due Process and Equal Protection Clauses in the Fourteenth Amendment of the U.S. Constitution, but they had never specifically interpreted them in an abortion case. But the Kansas Supreme Court treated this as a fresh question, recognizing that Kansas has the state sovereignty to determine the meaning of its own constitution, independent of analogous provisions in the U.S. Constitution. The court then commenced with a long, careful analysis of the “inalienable natural rights” expressly protected by the Kansas Constitution, which led it to the conclusion that the state constitution “acknowledges rights that are distinct from and broader than the United States Constitution.” The text makes clear that while life, liberty, and the pursuit of happiness are among the inalienable natural rights, there may be others.
One of the protected rights is “personal autonomy,” which “allows a woman to make her own decisions regarding her body, health, family formation, and family life—decisions that can include whether to continue a pregnancy.” Indeed, the court held, the protection for personal autonomy in section 1 of the Kansas Constitution that it did not even need to consult the other provision cited by the doctor-plaintiffs (section 2) to rule in their favor. The court’s analysis is lengthy and comprehensive—and based on consideration of a breadth of legal, philosophical, and historical sources.
The Kansas court also drew on rulings from several other state supreme courts, who have found protection for reproductive rights, including abortion, in their own constitutions. These rulings, while numerous, have received little attention in the literature because the federal Constitution has been doing the heavy lifting since Roe. But these state constitutions, and state court interpretations, will become more important as the federal protections become more vulnerable to attack.
The Kansas Supreme Court went beyond simply recognizing that its constitution protects the right to terminate a pregnancy. It also considered the standard for measuring infringement of the right. As explained above, the federal Constitution has been interpreted to protect the right to terminate a pre-viability pregnancy without an undue burden from the government. But the undue burden standard has been interpreted to permit states to impose many different kinds of restrictions on abortion access, including waiting periods, mandatory ultrasounds, counseling requirements, parental consent and notification requirements (subject to judicial bypass), and so on. The Supreme Court struck down an egregious subset of restrictions in Whole Woman’s Health v. Hellerstedt (2016), so-called TRAP laws (targeted regulation of abortion providers). In that case, the Court invalidated two provisions of Texas law that imposed requirements on abortion clinics that provided no benefits to women’s health but made it difficult for many clinics to stay in business. (The case is analyzed in more detail here.) But there are many other restrictions that interfere with abortion access that have been upheld under the undue burden standard.
Thus, it matters that the Kansas Supreme Court did not adopt the undue burden standard when interpreting the state constitution. Rather, it held, the right of personal autonomy is fundamental, and any infringement must be evaluated under strict scrutiny—the standard most likely to lead to its invalidation. This is comparable to the standard initially applied in Roe—before it was watered down in Casey. And it is the standard adopted by many of the other states that have ruled in favor of state constitutional protection for abortion. This standard presumes all restrictions to be unconstitutional and upholds them only upon proof by the government of a compelling state interest and narrowly tailored means. As applied to the case before it, the court had no trouble concluding that banning the best available abortion procedure could not be justified under strict scrutiny. It was thus appropriate for the trial court to issue a temporary injunction preventing the enforcement of S.B. 95 pending a trial on the merits.
Conclusion
It goes without saying that the abortion wars will come to an end no time soon. Reaffirming Roe will not end the fight, but nor will overturning it. What we are likely to end up with is a more extreme version of what we have now—whether a woman has legal or practical access to abortion will depend on the state she lives in. But we may not be able to accurately predict which states will end up on which side of the line. Kansas was an unlikely pick for a strong pro-choice state, but unless and until the state constitution is amended, that is where it will stay.