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Hodes & Nauser, M.D.s, P.A., et al. v. Schmidt & Howe (Kan. Sup. Ct.)

READ CAC's BRIEF IN Hodes & Nauser, M.D.s, P.A., et al. v. Schmidt & Howe

In Hodes & Nauser M.D.s, P.A., et al. v. Schmidt & Howe, the Kansas Supreme Court is being asked to decide whether Sections 1 and 2 of the Kansas Constitution’s Bill of Rights protect a woman’s right to obtain an abortion.

On April 7, 2015, Kansas Senate Bill 95 (“S.B. 95”) was signed into law prohibiting the use of the “D&E” method of abortion. D&E is the most commonly used method of abortion after the first trimester of pregnancy, accounting for 95% of second-trimester abortions performed in the United States. In order to adhere to the law’s requirements, a woman seeking an abortion after the first trimester would be forced to undergo an unnecessary medical procedure against the judgment of her physician – a procedure that would expose her to further medical risks and offer no benefit to her health. A team of board-certified obstetricians sued the state of Kansas in state court on the ground that S.B. 95 violates Sections 1 and 2 of the Kansas Constitution’s Bill of Rights by intruding on a woman’s fundamental right to terminate a pregnancy.  The district court issued a temporary injunction against the law’s enforcement. By an equally divided vote, the Kansas Court of Appeals affirmed the district court’s holding that the Kansas Constitution does protect a woman’s right to obtain an abortion, and that S.B. 95 violates that guarantee. The state appealed to the Kansas Supreme Court.

On September 27, 2016, Constitutional Accountability Center, along with the American Civil Liberties Union Foundation of Kansas, filed a joint friend-of-the-court brief in the Kansas Supreme Court, urging that court to affirm the decision of the Kansas Court of Appeals. Our brief argues that the Kansas Constitution guarantees the full scope of liberty and dignity protected by the Fourteenth Amendment of the U.S. Constitution, including a woman’s right to terminate a pregnancy. While the language of Section 1 of the Kansas Constitution’s Bill of Rights differs from the language of the Fourteenth Amendment, history shows that both were designed to ensure broad protection of substantive fundamental rights – not limited to rights specifically enumerated elsewhere – in order to vindicate the Declaration of Independence’s promise of the full scope of liberty. In addition, Kansas Supreme Court precedent recognizes that the Kansas Constitution’s guarantee of equal and inalienable rights should be given the same meaning as the Fourteenth Amendment; indeed, it has never been interpreted, as the state now argues it should be, to offer less protection for individual rights than does the Fourteenth Amendment.

Oral argument is scheduled for March 16, 2017.

 Briefs filed by CAC: