Civil and Human Rights

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 was asked to decide whether Sections 1 and 2 of the Kansas Constitution’s Bill of Rights protect the right to obtain an abortion.

Case Summary

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 person seeking an abortion after the first trimester would be forced to undergo an unnecessary medical procedure against their physician’s judgment—a procedure that would expose them to further medical risks and offer no health benefit. 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 the 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 protects the right to obtain an abortion, and that S.B. 95 violates that guarantee. The state appealed to the Kansas Supreme Court.

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 the 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 April 2019, in a sweeping 6-1 ruling, the Kansas Supreme Court held that the Kansas Constitution protects the right to an abortion, explaining that  “the right to personal autonomy . . . allows a woman to make her own decisions regarding her body, health, family foundation, and family life – decisions that can include whether to continue a pregnancy.” Echoing our brief, the court highlighted the original meaning of Section 1 of the Kansas Constitution, whose authors deliberately included broad promises of liberty, equality, and dignity found in America’s Declaration of Independence.  Notably, the Kansas Supreme Court construed its state constitution to be more protective of liberty and equality than the U.S. Constitution, insisting that government restrictions on abortion had to satisfy strict judicial scrutiny.  Thus, the Kansas Supreme Court affirmed the trial court’s temporary injunction against S.B. 95’s enforcement and remanded the issue to the trial court for consideration of the merits under the strict scrutiny standard.

Case Timeline

  • September 22, 2016

    CAC co-files amicus brief with ACLU of Kansas

    Kansas Supreme Court Amicus Brief
  • March 16, 2017

    Kansas Supreme Court hears oral argument

  • April 26, 2019

    The Kansas Supreme Court issues its decision