With two Trump appointees now reinforcing a solid majority conservative bloc on the U.S. Supreme Court, the survival odds of a federal constitutional right to an abortion as we have known it since Roe v. Wade came down in 1973 are not very good. In anticipation of the day when states will again have significant leeway — if not total control — in the area of abortion policy, many Republican-controlled states have been enacting laws that blatantly violate SCOTUS standards, implicitly inviting the Court to change everything. There has even been a countertrend in some Democratic-controlled states to hedge against the reversal of Roe with their own policies protecting abortion rights (most famously in New York, which enacted a Reproductive Health Act in January). All told, ten states now have laws protecting abortion rights at least until fetal viability, according to the Guttmacher Institute.
But no malleable state statute protecting a right is any substitute for a constitutional guarantee. So that’s why it’s so significant that the Kansas Supreme Court has now recognized a state constitutional right to an abortion as inherent to language acknowledging “life, liberty, and the pursuit of happiness” as “inalienable natural rights.” Since this language, drawn from the Declaration of Independence, has been popular among constitution-drafters over the centuries, it represents a coup for abortion rights that might be replicated elsewhere. And it wasn’t a close decision, since six of seven justices concurred with this reasoning (as reported by NPR):
“We are now asked: ‘Is this declaration of rights more than an idealized aspiration? And, if so, do the substantive rights include a woman’s right to make decisions about her body, including the decision whether to continue her pregnancy? We answer these questions, ‘Yes.’ “
The court continued that “this right allows 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.”
“The State may only infringe upon the right to decide whether to continue a pregnancy,” the ruling continued, “if the State has a compelling interest and has narrowly tailored its actions to that interest.”
Though rooted in a different constitutional premise, the Kansas court’s conclusion is similar to the standard set by SCOTUS in Roe and in Planned Parenthood v. Casey.
The case arose from a challenge to a 2015 law enacted by the Republican-controlled Kansas legislature that banned all abortions using the dilation-and-evacuation method, the most commonly used procedure for second-trimester abortions (and representing an estimated 9 percent of abortions in Kansas). Conservative legislators, of course, are already vowing to pass a constitutional amendment to overturn the decision and restrict abortion rights, which would have to be ratified in a statewide referendum. But they won’t get any support from pro-choice Democratic governor Laura Kelly, unlike the governor who signed the 2015 law, culture-war stalwart Sam Brownback.
In a parallel development earlier this month, the Vermont Senate overwhelmingly passed a constitutional amendment specifically recognizing the right to an abortion; the state House is likely to follow suit, but that state’s provisions for amending the constitution would require a second vote and then a referendum which can only happen in November 2022 at the earliest. There’s no telling what will be left of Roe v. Wade by then. But for the time being, the rights of women in Kansas are safe.