Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, April 30, 2019

On the natural right to obtain a Dilation & Evacuation abortion in Kansas 1/

The Supreme Court of Kansas held last week in Hodes & Nauser, MDs, P.A. v. Schmidt that Section 1 of the Kansas Constitution protects a pregnant woman's natural right to obtain a Dilation & Evacuation abortion. There's much to think about and say about the opinions. Thus far, too, I've only read the majority opinion. But I thought I'd begin with a few general thoughts:

  1. The very existence of this case shows the fragility of the current constitutional law of abortion--both state and federal. The majority distances itself from the the federal constitutional law of abortion. That is presumably because of the Kansas justices' well-founded perception that the federal constitutional law of abortion is likely to change in ways that make it harder to find abortion limitations unconstitutional.

  2. The distancing is opportunistic rather than thoroughgoing, though. The Kansas majority imports three-tiered scrutiny from federal constitutional law. And the key move to get from John Locke to a right to abortion passes through the Supreme Court's 1972 decision in Eisentadt v. Baird. Despite some surface differences, the majority opinion overall reads like a product of the 1970s.

  3. This "Back to the '70s"  feel is amplified by the majority opinion's heavy reliance on the unreliable abortion historiography in James Mohr's 1978 book, Abortion in America: The Origins and Evolution of National Policy. Any judge inclined to rely on this book would be well-served to first go through the seventy or so index entries on Mohr in Joseph Dellapenna's 2006 book, Dispelling the Myths of Abortion History.


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