By ED WHELAN
April 26, 2021 8:00 AM
2019— The Kansas supreme court rules (in Hodes & Nauser v. Schmidt) that the declaration in section 1 of the Kansas Constitution Bill of Rights, dating from 1859, that “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness” means that any restriction on abortion must be subjected to strict scrutiny (rather than the more permissive “undue burden” standard that the U.S. Supreme Court misread into the federal Constitution in Planned Parenthood v. Casey in 1992).
The ruling comes in a challenge to a Kansas law, enacted in 2015, that prohibits use of the dilation-and-evacuation (D&E) method of abortion except where necessary to preserve the life or health of the mother. D&E is the most common method of abortion in the second trimester. In his opinions in the partial-birth abortion cases (Stenberg v. Carhart (2000) and Gonzales v. Carhart (2007)), Justice Kennedy described what ordinary D&E entails (in order to distinguish it from partial-birth abortion, which is a variant of D&E). In his solo dissent, Justice Caleb Stegall quotes Justice Kennedy’s descriptions:
The [D&E] procedure “requires the abortionist to use instruments to grasp a portion (such as a foot or hand) of a developed and living fetus and drag the grasped portion out of the uterus into the vagina.” Using the resistance “created by the opening between the uterus and vagina” the “grasped portion” is torn “away from the remainder of the body.” “For example, a leg might be ripped off the fetus as it is pulled through the cervix and out of the woman.” The baby then “bleeds to death as it is torn limb from limb.” The child “can survive for a time while its limbs are being torn off.” The heartbeat can continue even “with ‘extensive parts of the fetus removed.’” “At the conclusion of a D&E abortion . . . the abortionist is left with ‘a tray full of pieces.’”
Six members of the Kansas supreme court would have you believe that a mother has a “natural right” to have her child killed in this way.
In his lengthy and impressive dissent, Justice Stegall castigates the majority for “abandon[ing] the original public meaning of section 1” and for “paint[ing] the interest in unborn life championed by millions of Kansans as rooted in an ugly prejudice.”
M. Edward Whelan III
Distinguished Senior Fellow and
Antonin Scalia Chair in Constitutional Studies
Ethics and Public Policy Center
1730 M Street N.W., Suite 910
Washington, D.C. 20036