The Supreme Court of Kansas has ruled that the rights to “life, liberty and the pursuit of happiness” in the state Constitution’s Bill of Rights encompass a woman’s “right” to an abortion.
“We conclude that, through the language in section 1, the state’s founders acknowledged that the people had rights that pre-existed the formation of the Kansas government. There they listed several of these natural, inalienable rights …,” the court wrote in its opinion, released on Friday. “Included in that limited category is the 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 a pregnancy. Although not absolute, this right is fundamental,” it asserted. “Accordingly, the State is prohibited from restricting this right unless it is doing so to further a compelling government interest and in a way that is narrowly tailored to that interest.”
As previously reported, in 2015, then-Gov. Sam Brownback signed Senate Bill 95 into law, banning what is termed as “dismemberment abortions.” The bill passed the Senate 31-9 and moved to the House where it likewise was approved 98-26.
The law prohibits “knowingly dismembering a living unborn child and extracting such unborn child one piece at a time from the uterus through the use of clamps, grasping forceps, tongs, scissors or similar instruments that, through the convergence of two rigid levers, slice, crush or grasp a portion of the unborn child’s body in order to cut or rip it off.”
The prohibition was challenged by abortionist Herbert Hodes and his daughter, Traci Nauser, who argued that it placed a burden on their “right” to perform second trimester abortions.
In court, the state defended the ban, in part, by presenting other options for ending the lives of the unborn.
“The state has offered three alternatives to the standard D & E procedure: labor-induced abortion, inducing fetal demise with digoxin injections, and inducing fetal demise by cutting the umbilical cord (also known as transection),” an appeals court ruling outlines.
In June 2015, Shawnee County District Judge Larry Hendricks placed an injunction on the enforcement of the law while the constitutionality of the legislation is decided in full in court.
“The alternatives do not appear to be medically necessary or reasonable,” he said. “[P]atients’ fundamental right to terminate a pregnancy will be unduly burdened if SB 95 goes into effect.”
The state then filed an appeal, and in January 2016, the Kansas Court of Appeals announced that it was was evenly split over the matter.
The half that favored the injunction pointed to the U.S. Supreme Court’s ruling on same-sex “marriage,” stating that the courts seem to find “rights” in the law that aren’t expressly written in the Constitution. It used the example and others to conclude that Kansas must include the “right” to abortion.