Hodes & Nauser, MDS, P.A. v. Schmidt

• Decision Date: 26 April 2019
• Docket Number: No. 114,153,114,153
• Citation: 440 P.3d 461
• Parties: HODES & NAUSER, MDS, P.A.; Herbert C. Hodes, M.D.; and Traci Lynn Nauser, M.D., Appellees, v. Derek SCHMIDT, in His Official Capacity as Attorney General of the State of Kansas; and Stephen M. Howe, in His Official Capacity as District Attorney for Johnson County, Appellants.
• Court: Kansas Supreme Court

440 P.3d 461

HODES & NAUSER, MDS, P.A.; Herbert C. Hodes, M.D.; and Traci Lynn Nauser, M.D., Appellees,

v.Derek SCHMIDT, in His Official Capacity as Attorney General of the State of Kansas; and Stephen M. Howe, in His Official Capacity as District Attorney for Johnson County, Appellants.

No. 114,153

Supreme Court of Kansas.

Opinion filed April 26, 2019.

Stephen R. McAllister, solicitor general, argued the cause, and Sarah E. Warner and Shon D. Qualseth, of Thompson Ramsdell Qualseth & Warner, P.A., of Lawrence, Jeffrey A. Chanay, chief deputy attorney general, Dennis D. Depew, deputy attorney general, Dwight R. Carswell, assistant solicitor general, Bryan C. Clark, assistant solicitor general, and Derek Schmidt, attorney general, were with him on the briefs for appellant.

Janet Crepps, of Center for Reproductive Rights, of New York, New York, argued the cause, and Genevieve Scott and Zoe Levine, of the same office, Erin Thompson, of Foland, Wickens, Eisfelder, Roper and Hofer, P.C., of Kansas City, Missouri, Lee Thompson, of Thompson Law Firm, LLC, of Wichita, Robert V. Eye, of Robert V. Eye Law Office, LLC, of Lawrence, and Teresa A. Woody, of The Woody Law Firm PC, of Kansas City, Missouri, were with her on the briefs for appellee.

Mary Ellen Rose, of Overland Park, Kevin M. Smith, of Law Offices of Kevin M. Smith, P.A., of Wichita, and Paul Benjamin Linton, of Thomas More Society, of Northbrook, Illinois, were on the briefs for amicus curiae Family Research Council.

Stephen Douglas Bonney, of ACLU Foundation of Kansas, of Overland Park, and Brianne J. Gorod and David H. Gans, of Constitutional Accountability Center, of Washington, D.C., were on the brief for amici curiae Constitutional Accountability Center and American Civil Liberties Union Foundation of Kansas.

Frederick J. Patton, II, of Patton and Patton Chartered, of Topeka, and Teresa S. Collett, of Saint Paul, Minnesota, were on the briefs for amicus curiae Kansans for Life.

Mark P. Johnson, of Dentons US LLP, of Kansas City, Missouri, was on the brief for amici curiae Kansas physicians.

Don Saxton, of Saxton Law Firm LLC, of Kansas City, Missouri, and Kimberly A. Parker, Skye L. Perryman, Brittani Kirkpatrick Ivey, and Souvik Saha, of Wilmer Cutler Pickering Hale and Dorr LLP, of Washington, D.C., were on the briefs for amicus curiae American College of Obstetricians and Gynecologists.

Richard J. Peckham, of Andover, and Mathew D. Staver and Horatio G. Mihet, of Liberty Counsel, of Orlando, Florida, were on the brief for amici curiae American Association of Pro-Life Obstetricians & Gynecologists, American College of Pediatricians, and Catholic Medical Association.

Per Curiam:

Section 1 of the Kansas Constitution Bill of Rights provides: "All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness." 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."

We conclude that, through the language in section 1, the state's founders acknowledged that the people had rights that preexisted the formation of the Kansas government. There they listed several of these natural, inalienable rights—deliberately choosing language of the Declaration of Independence by a vote of 42 to 6.

Included in that limited category is the right of personal autonomy, which includes the ability to control one's own body, to assert bodily integrity, and to exercise self-determination. 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. Although not absolute, this right is fundamental. Accordingly, the State is prohibited from restricting this right unless it is doing so to further a compelling government interest and in a way that is narrowly tailored to that interest. And we thus join many other states' supreme courts that recognize a similar right under their particular constitutions.

Finally, we conclude that the plaintiffs Herbert C. Hodes, M.D., Traci Lynn Nauser, M.D., and Hodes & Nauser, MDs, P.A. (Doctors) have shown they are substantially likely to ultimately prevail on their claim that Senate Bill 95 violates these principles by severely limiting access to the safest procedure for second-trimester abortions

. As a result, we affirm the trial court's injunction temporarily enjoining the enforcement of S.B. 95 and remand to that court for full resolution on the merits.

THE LEGISLATION AND THIS CASE'S PROCEDURAL HISTORY

In 2015, the Kansas Legislature enacted S.B. 95, which is now codified at K.S.A. 65-6741 through 65-6749. S.B. 95 prohibits physicians from performing a specific abortion method referred to in medical terms as Dilation and Evacuation (D & E) except when "necessary to preserve the life of the pregnant woman" or to prevent a "substantial and irreversible physical impairment of a major bodily function of the pregnant woman." K.S.A. 65-6743(a).

In this case, the Doctors provide abortions, including D & E procedures, in Kansas. They filed this action challenging S.B. 95 on behalf of themselves and their patients on June 1, 2015. They argued S.B. 95 prevents them from using the safest method for most second-trimester abortions—the D & E method. These restrictions, according to the Doctors, violate sections 1 and 2 of the Kansas Constitution Bill of Rights because they infringe on inalienable natural rights, specifically, the right to liberty.

A graphic description of the D & E procedure referred to in S.B. 95 is not necessary to resolving the legal issues before us. Although the detailed nature of the procedure may factor into the lower court's later decision on the full merits, at this temporary injunction stage the United States Supreme Court's description suffices. That Court explained the procedure involves "(1) dilation of the cervix; (2) removal of at least some fetal tissue using nonvacuum instruments; and (3) (after the 15th week) the potential need for instrumental disarticulation

or dismemberment of the fetus or the collapse of fetal parts to facilitate evacuation from the uterus." Stenberg v. Carhart , 530 U.S. 914, 925, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000). The Doctors argued, and the trial court found, that 95% of second-trimester abortions in the United States are performed using the D & E procedure.

When the Doctors filed this action, they also filed a motion for temporary injunction to prevent S.B. 95 from taking effect while the case moved forward. The Doctors submitted documentation to support this motion, including two affidavits from board-certified physicians licensed to provide abortion care and one affidavit from an expert on medical ethics.

The defendants, the Kansas Attorney General and the District Attorney for Johnson County (the State), submitted a response opposing the temporary injunction, asserting that the Doctors had failed to show they were entitled to the relief they sought because there is no right to abortion protected by the Kansas Constitution. The State acknowledged that the United States Supreme Court decided in Roe v. Wade , 410 U.S. 113, 157-58, 164, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), that a fetus is not a "person" entitled to protection under the Fourteenth Amendment to the United States Constitution and that, at least in the early stages of a pregnancy, the State could not interfere with a woman's right to decide whether to continue her pregnancy. But it argued those same rights do not exist under the Kansas Constitution.

Alternatively, the State argued that, if such state constitutional rights exist, S.B. 95 would not violate them. It first pointed to the test adopted by the United States Supreme Court in Planned Parenthood of Southeastern Pa. v. Casey , 505 U.S. 833, 874-78, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (plurality opinion)—often referred to as the undue burden test or standard—for balancing the burdens imposed on a woman's rights and the State's interests. The State then concluded S.B. 95 does not impose an undue burden on a pregnant woman's right to obtain a lawful abortion, in part because other abortion procedures are available. Before the trial court, the State primarily presented three alternatives: labor induction, induction of fetal demise using an injection, and induction of fetal demise using umbilical cord transection.

Following a hearing on the Doctors' motion, the trial court granted the temporary injunction. The court noted (1) this court has repeatedly stated that sections 1 and 2 of the Kansas Constitution Bill of Rights are given much the same effect as the Fourteenth Amendment to the United States Constitution; (2) the United States Supreme Court caselaw provides a framework for analyzing the constitutionality of the Kansas legislation; and (3) under that framework, the Doctors are substantially likely to prevail on the merits of their claim that the legislation is unconstitutional. Citing Casey and other United States Supreme Court decisions that applied its undue burden test advanced by the State, the trial court concluded S.B. 95 is likely to unduly burden access to abortions because it eliminates the most commonly used procedure for second-trimester abortions

and the State's proposed alternatives are more dangerous. In rejecting the State's arguments about alternative procedures, the trial court made the following findings of fact regarding those procedures:

• "Labor induction is used in approximately 2% of second-trimester abortion

procedures. It requires an inpatient labor

process in a hospital that will last between 5-6 hours up to 2-3 days, includes increased risks of infection when compared to D & E, and is medically contraindicated for some women."

• "There is no established safety benefit to inducing

...