On Monday, Kansas Attorney General Derek Schmidt filed an appeal with the Kansas Supreme Court, asking for an expedited ruling on the question of whether the Kansas Constitution embodies a right to abortion.
A 7-7 ruling from the Court of Appeals on Jan. 22 maintained a district court’s temporary injunction against the Kansas Unborn Child Protection from Dismemberment Act.
However, Schmidt asserts that properly understood, the 7-7 tie is really a 7-6-1 ruling, thus denying any state constitutional right to abortion.
The appeal (ironically titled a “prayer” in legal jargon) argues that the heart of the Court of Appeals ruling is whether the state Bill of Rights mimics the due process protection of the federal Fourteenth Amendment that is the basis for Roe v Wade.
- Seven appellate judges (in the dissent, penned by Chief Judge Thomas Malone) held that the state Bill of Rights does not provide “Roe” protection,
- six judges (in the ruling written by Judge Steve Leben) said the state Bill of Rights does provide “Roe” protection by extension, and
- one concurrence (by Judge G. Gordon Atcheson) conceded that the state Bill of Rights’ Article 1 really doesn’t match up with “Roe” but no matter because abortion is protected in a stronger way.
Judge Atcheson wrote, “Article 1 provides a constitutional protection [for abortion] that has no direct analog in the federal Constitution… [it] effectuates self-determination consistent with an evolving and ever more enlightened understanding of humanity across both race and gender.”
He also wrote, “a woman’s right of self-determination, as established in Article 1, takes precedence [over a fetus] incapable of free-will or self-determination,” and “I cannot infer a particular legislative purpose or governmental interest advanced in Senate Bill 95 [the dismemberment ban].”
Truly the abortion protection that Judge Atcheson wishes to be found in Kansas’ 1859 Bill of Rights is broader than Roe and –if agreed to by the Kansas Supreme Court—poses a threat to all existent pro-life laws in this state.
On the other hand, the six appellate judges who want a state right to be an extension of Roe implicitly would examine pro-life laws under the “undue burden” standard, which is more workable than if abortion is declared fundamentally protected and laws have to pass “strict scrutiny.”
Because the appellate court really left all Kansas courts adrift in confusion, Schmidt urges the Kansas Supreme Court to take up the issue. Until it is resolved, it will continue to be raised in existent and future lawsuits, he argued.
At issue is a compelling constitutional question of “first impression.” That is something that ultimately only the Kansas Supreme Court can resolve.