Tuesday, April 30, 2019
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:
- 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.
- 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.
- 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.