Photo credit: wp paarz via Flickr, CC BY-SA 2.0

Kansas Supreme Court Discovers Right to Abortion in State Constitution


The Kansas Supreme Court has discovered a right to abortion in the state’s constitution in a decision striking down a ban on a brutal second-trimester abortion technique.

At issue was a 2015 law prohibiting “dilation and evacuation” abortions, which involves dismembering the baby into pieces in order to remove him or her because the baby is too big to be suctioned out whole. The lawsuit was brought on behalf of two father-and-daughter abortionists.

The court’s 6-1 decision claims that Kansas’s constitution, ratified in 1859, “affords protection of the right of personal autonomy, which includes the ability to control one’s own body, to assert bodily integrity, and to exercise self-determination.” None of these phrases actually appear in the Kansas Constitution. However, the court’s majority declared, in their almighty wisdom, that these admittedly unnamed rights manufacture another nonexistent right to allow “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.” They also declared that dismemberment abortions are essential to this series of previously unknown rights.

Four of the six justices in the majority opinion were appointed by former Governor Kathleen Sebelius, a Democrat who went on to serve as President Obama’s first Secretary of Health and Human Services, where she implemented the abortion mandate in Obamacare. The other two were appointed by former Governor Bill Graves, a Republican.

The lone dissent came from Justice Caleb Stegall, appointed by former Republican Governor Sam Brownback. Stegall called the court’s decree “the most significant and far-reaching decision this court has ever made…because it fundamentally alters the structure of our government to magnify the power of the state — all while using that power to arbitrarily grant a regulatory reprieve to the judicially privileged act of abortion. In the process, the majority abandons the original public meaning of section 1 of the Kansas Constitution Bill of Rights and paints the interest in unborn life championed by millions of Kansans as rooted in an ugly prejudice.”

Mary Kay Culp of Kansans for Life said in a statement, “This horrendous ruling is due to the Court’s false claim that there exists a ‘right to abortion’ in our 1859 state constitution that despite being unstated somehow deserves to trump 45 years of citizen efforts that have cut abortions in half, increased women’s right to know protections, and resulted in the first state law to send the heinous dismemberment abortion method packing.”

Justice Stegall concluded his dissent by writing:

Reading today’s majority opinion is a follow-the-white-rabbit experience. One is left feeling like Alice, invited by the Queen to believe ‘as many as six impossible things before breakfast.’ Indeed, the story told by the majority is a strange one. In it, all the luminaries of the western legal tradition — from Sir Edward Coke and William Blackstone to Edmund Burke and Thomas Jefferson — would celebrate and enshrine a right to nearly unfettered abortion access. In this imagined world, the Liberty Bell rings every time a baby in utero loses her arm.

Photo credit: wp paarz via Flickr, CC BY-SA 2.0

Thomas Valentine

Thomas Valentine is a columnist for

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