Hodes & Nauser, MDs, P.A.; Herbert C. Hodes, M.D.; and Traci Lynn Nauser, M.D., Appellees,
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.
BY THE COURT
obtain a temporary injunction, a plaintiff must show the
court: (1) The plaintiff has a substantial likelihood of
eventually prevailing on the merits; (2) a reasonable
probability exists that the plaintiff will suffer irreparable
injury without an injunction; (3) the plaintiff lacks an
adequate legal remedy, such as damages; (4) the threat of
injury to the plaintiff outweighs whatever harm the
injunction may cause the opposing party; and (5) the
injunction will not be against the public interest.
a party alleges a trial court erred in issuing a temporary
injunction, an appellate court examines whether the court
abused its discretion. A trial court abuses its discretion if
its decision is (1) arbitrary, fanciful, or unreasonable; (2)
based on an error of law; or (3) based on an error of fact.
Kansas courts have the authority to interpret Kansas
constitutional provisions independently of the manner in
which federal courts interpret similar or corresponding
provisions of the United States Constitution. This can result
in the Kansas Constitution protecting the rights of Kansans
more robustly than would the United States Constitution.
Kansas courts look to the words of the Kansas Constitution to
interpret its meaning. When the words do not make the
drafters' and people's intent clear, courts look to
the historical record, remembering the polestar is the
intention of the makers and adopters of the relevant
Appellate courts conduct de novo review of issues requiring
the interpretation of constitutional provisions, which means
appellate courts are not bound by the interpretation of a
Section 1 of the Kansas Constitution Bill of Rights sets
forth rights that are broader than and distinct from the
rights in the Fourteenth Amendment to the United States
rights acknowledged in section 1 of the Kansas Constitution
Bill of Rights are judicially enforceable against
governmental action that does not meet constitutional
Section 1 of the Kansas Constitution Bill of Rights affords
protection of 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 lifeâ decisions that can
include whether to continue a pregnancy.
State may only infringe upon the right to decide whether to
continue a pregnancy if the State has a compelling interest
and has narrowly tailored its actions to that interest.
When common-law terms are used in the Kansas Constitution
Bill of Rights, courts should look to common-law definitions
for their meaning.
recognition of inalienable natural rights in section 1 of the
Kansas Constitution Bill of Rights is intended for all
Kansans, including pregnant women.
Kansas Constitution does not begin with an enumeration of the
powers of government; it instead begins with a Bill of Rights
for all Kansans, which in turn begins with a statement of
inalienable natural rights, among which are life, liberty,
and the pursuit of happiness. By this ordering, demonstrating
the supremacy placed on the rights of individuals,
preservation of these natural rights is given precedence over
the establishment of government.
This court, when considering claims brought under section 1
of the Kansas Constitution Bill of Rights has recognized and
adopted three standards: (1) the rational basis standard,
which requires only that the enactment bear some rational
relationship to a legitimate state interest; (2) the
heightened or intermediate scrutiny standard, which requires
the enactment to substantially further an important state
interest; and (3) the strict scrutiny standard, which
requires the enactment serve some compelling state interest
and be narrowly tailored to further that interest. The
determination of which of the three standards applies depends
on the nature of the right at stake.
most searching of these standardsâstrict scrutinyâapplies
when a fundamental right is implicated.
natural right of personal autonomy is fundamental and thus
requires applying strict scrutiny.
Under strict scrutiny, the burden falls on the government to
defend challenged legislation.
Before a court considers whether any governmental action
survives strict scrutiny, it must be sure the action actually
impairs the right.
Generally, a statute comes before the court cloaked in a
presumption of constitutionality, and it is the duty of the
one attacking the statute to sustain the burden of proving
When a statute is presumed constitutional, all doubts must be
resolved in favor of its validity. If there is any reasonable
way to construe that statute as constitutionally valid, the
court has the authority and duty to do so.
a case involving a suspect classification or fundamental
interest, the courts peel away the protective presumption of
constitutionality and adopt an attitude of active and
critical analysis, subjecting the classification to strict
scrutiny. In that case, the burden of proof is shifted from
plaintiff to defendant and the ordinary presumption of
validity of the statute is reversed.
presumption of constitutionality applies to a statute subject
to strict scrutiny under section 1 of the Kansas Constitution
Bill of Rights.
of the judgment of the Court of Appeals in 52 Kan.App.2d 274,
368 P.3d 667 (2016).
from Shawnee District Court; Larry D. Hendricks, judge.
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.
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.
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.
P. Johnson, of Dentons U.S. LLP, of Kansas City, Missouri,
was on the brief for amici curiae Kansas physicians.
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.
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,
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.
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.
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.
Legislation and This Case's Procedural History
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).
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.
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.
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
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
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.
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 demise prior to a D & E procedure."
• Regarding fetal demise by either transabdominal or
transvaginal injection of digoxin, "[r]esearch studies
have shown increased risks of nausea, vomiting, extramural
delivery, and hospitalization."
• "Injections to induce demise using digoxin prior
to D & E are not practiced prior to 18 weeks gestation,
and the impact of subsequent doses of digoxin, required in
cases where a first does is not effective, is virtually
• "Umbilical cord transection prior to a D & E
is not possible in every case" and, when used,
"increases procedure time, makes the procedure more
complex, and increases risks of pain, infection, uterine
perforation, and bleeding."
• "The use of transection to induce fetal demise
has only been discussed in a single retrospective study, the
authors of which note that its main limitation is 'a
potential lack of generalizability.'"
State reminds us that it has not yet fully litigated the
safety of the various procedures. Nevertheless, it does not
suggest the trial court lacked a factual basis for making
those findings based on the limited record made for purposes
of the ruling on the temporary injunction.
us, the State discusses an alternative to the D & E
procedure it had briefly mentioned to the trial court: the
induction of fetal demise using potassium chloride, otherwise
known as KCl. During the trial court proceedings, the
Doctors, in apparent anticipation of this alternative being
argued, presented affidavits that included facts about this
procedure and its risks. Nevertheless, presumably because the
State made only a passing reference to this procedure, the
trial court did not make any factual finding about it. As a
result, this alternative does not factor into our analysis.
"[A]ppellate courts do not make factual findings but
review those made by district courts." State v.
Berriozabal, 291 Kan. 568, 591, 243 P.3d 352 (2010). And
the State did nothing to insure adequate factual findings on
the issue. See State v. Rodriguez, 302 Kan. 85, 91,
350 P.3d 1083 (2015) (party must object to inadequate
findings of fact to preserve issue for appeal). Consequently,
the State has essentially waived this alternative-at least
for the purposes of this appeal-and we have no basis to
consider the State's fact-based argument regarding the
comparative safety of the KCl procedure.
making the findings about the safety risks associated with
the three alternatives primarily argued by the State to the
trial court, that court cited Gonzales v. Carhart,
550 U.S. 124, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007);
Stenberg v. Carhart, 530 U.S. 914; and Planned
Parenthood of Missouri v. Danforth, 428 U.S. 52, 96
S.Ct. 2831, 49 L.Ed.2d 788 (1976). Gonzales and
Stenberg both dealt with legislation restricting
access to D & E procedures. Based on that authority, the
trial court concluded: "[T]he Supreme Court has already
balanced the State interests asserted here against a ban on
the most common method of second-trimester abortion and
determined that it is unconstitutional." Finding this
indicated a likelihood that the Doctors ultimately would
succeed on the merits of their petition, the trial court
granted a temporary injunction.
State immediately appealed from this temporary injunction to
the Court of Appeals. That court, sitting en banc, split
6-1-7. Hodes & Nauser, MDs v. Schmidt, 52
Kan.App.2d 274, 368 P.3d 667 (2016). Seven of the judges
concluded that the Kansas Constitution protects a woman's
access to abortion services and held that the injunction
should be affirmed, but they split 6-1 on the reasons to
reach that result. In a plurality opinion, six of the judges
adopted the reasoning of the trial court-i.e., 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. 52 Kan.App.2d at 275.
One judge wrote separately, concurring in the plurality's
result only and reasoning that our state Constitution
provides protection of interests separate and distinct from
the United States Constitution. 52 Kan.App.2d at
297. The seven remaining judges dissented,
concluding that the injunction was not warranted because a
woman has no right protected by the Kansas Constitution to
obtain an abortion. 52 Kan.App.2d at 330. Because the panel
split evenly on the result, the trial court's temporary
injunction remained in place. 52 Kan.App.2d at 295.
granted the State's petition for review, providing our
jurisdiction under K.S.A. 60-2101(b).
ultimate question presented in this appeal is whether the
trial court erred in granting a temporary injunction. A
temporary injunction merely preserves the relative positions
of the parties until a full decision on the merits can be
made. Steffes v. City of Lawrence, 284 Kan. 380,
394, 160 P.3d 843 (2007). Even so, in order to obtain such an
injunction, a plaintiff must show the court: (1) The
plaintiff has a substantial likelihood of eventually
prevailing on the merits; (2) a reasonable probability exists
that the plaintiff will suffer irreparable injury without an
injunction; (3) the plaintiff lacks an adequate legal remedy,
such as damages; (4) the threat of injury to the plaintiff
outweighs whatever harm the injunction may cause the opposing
party; and (5) the injunction will not be against the public
interest. Downtown Bar and Grill v. State, 294 Kan.
188, 191, 273 P.3d 709 (2012).
party alleges a trial court erred in issuing a temporary
injunction, an appellate court examines whether the court
abused its discretion. 294 Kan. at 191. A trial court abuses
its discretion if its decision is (1) arbitrary, fanciful, or
unreasonable; (2) based on an error of law; or (3) based on
an error of fact. State v. Ward, 292 Kan. 541, 550,
256 P.3d 801 (2011).
State primarily contests the trial court's conclusions
regarding only one of the five requirements for issuing a
temporary injunction-specifically, the first element that
requires a plaintiff to establish a substantial likelihood of
eventually prevailing on the merits. According to the State,
the trial court abused its discretion when it held the Kansas
Constitution Bill of Rights protects a woman's right to
access abortion. Alternatively, the State argues S.B. 95 does
not violate any such rights. In both instances, the State
argues the court's decisions were based on an error of
arguments address the two elements the Doctors must establish
in order to prevail on the temporary injunction. First,
having alleged a violation of the Kansas Constitution Bill of
Rights, they must establish this right exists and that our
Constitution protects it. Second, the Doctors must establish
S.B. 95 unconstitutionally infringes on this right. See
State v. Limon, 280 Kan. 275, 284, 122 P.3d 22
The Doctors' First Burden: Establishing a Constitutional
the first of the Doctors' burdens, as previously
discussed, the trial court applied United States Supreme
Court decisions interpreting the Fourteenth Amendment to
reach the conclusion that sections 1 and 2 of the Kansas
Constitution Bill of Rights, like the Fourteenth Amendment,
protect a fundamental right to abortion. In doing so, the
trial court followed the guidance that has been provided by
this court over the years.
pointed out by the trial court and the members of the Court
of Appeals plurality, this court has often said that sections
1 and 2 have "much the same effect" as the Due
Process and Equal Protection Clauses found in the Fourteenth
Amendment to the United States Constitution. Generally, this
statement has been made in cases where a party asserts
violations of both Constitutions without making unique
arguments about sections 1 and 2. See, e.g., Limon,
280 Kan. at 283; State ex rel. Stephan v. Parrish,
257 Kan. 294, Syl. ¶ 5, 891 P.2d 445 (1995); State
ex rel. Tomasic v. Kansas City, Kansas Port Authority,
230 Kan. 404, 426, 636 P.2d 760 (1981); Manzanares v.
Bell, 214 Kan. 589, 602, 522 P.2d 1291 (1974); Henry
v. Bauder, 213 Kan. 751, 752-53, 518 P.2d 362 (1974);
Tri-State Hotel Co. v. Londerholm, 195 Kan. 748,
Syl. ¶ 1, 408 P.2d 877 (1965); The State v.
Wilson, 101 Kan. 789, 795-96, 168 P. 679 (1917). In yet
another case, Alpha Med. Clinic v. Anderson, 280
Kan. 903, 920, 128 P.3d 364 (2006), this court did not depart
from that line of cases when asked to determine if the Kansas
Constitution protects a woman's right to decide whether
to continue a pregnancy.
Alpha Med. Clinic, this court discussed the
"federal constitutional rights to privacy [that] are
potentially implicated" by an inquisition seeking
abortion records. 280 Kan. 903, Syl. ¶ 10. These include
"the fundamental right of a pregnant woman to obtain a
lawful abortion without government imposition of an undue
burden on that right." 280 Kan. at 920 (citing
Casey, 505 U.S. at 874-78 [plurality opinion]). In
referencing the potential that such a right arose under the
Kansas Constitution, this court stated: "We have not
previously recognized-and need not recognize in this case
despite petitioners' invitation to do so-that such rights
also exist under the Kansas Constitution." 280 Kan. at
the question asserted by the Doctors-whether the Kansas
Constitution Bill of Rights independently protects a
woman's right to decide whether to continue a
pregnancy-was not answered in Alpha Med. Clinic. And
it has not been determined in any other case before this
court. Moreover, since the ratification of the Fourteenth
Amendment in 1868, this court has rarely been asked to focus
solely on sections 1 or 2. Litigants typically present
sections 1 and 2 in tandem with the Fourteenth Amendment, and
Kansas courts have rarely contrasted the Kansas
constitutional provisions with the Fourteenth Amendment.
other contexts, however, this court has acknowledged that
"allowing the federal courts to interpret the Kansas
Constitution seems inconsistent with the notion of state
sovereignty." State v. Lawson, 296 Kan. 1084,
1091-92, 297 P.3d 1164 (2013). Indeed, this court has the
authority to interpret Kansas constitutional provisions
independently of the manner in which federal courts interpret
corresponding provisions of the United States Constitution.
This can result in the Kansas Constitution protecting the
rights of Kansans more robustly than would the United States
Constitution. 296 Kan. at 1090-91.
court has put these principles into practice on occasion and,
after doing so, has interpreted a provision of the Kansas
Constitution in a manner different from the United States
Supreme Court's interpretation of a parallel provision of
the United States Constitution. E.g., State v. McDaniel
& Owens, 228 Kan. 172, 184-85, 612 P.2d 1231 (1980)
(independently interpreting section 9 of the Kansas
Constitution Bill of Rights in manner different from the
Eighth Amendment to the United States Constitution).
Significantly, in Farley v. Engelken, 241 Kan. 663,
740 P.2d 1058 (1987), this court recognized section 1 of the
Kansas Constitution Bill of Rights describes rights that are
broader than and distinct from those in the Fourteenth
addressed the constitutionality of a statute that abolished
the collateral source rule in medical malpractice cases. The
parties had raised issues relating to the Fourteenth
Amendment and sections 1 and 18 of the Kansas Constitution
Bill of Rights. This court chose to analyze the issues under
the Kansas Constitution, holding it "affords separate,
adequate, and greater rights than the federal Constitution.
Therefore, [it held] we clearly and expressly decide this
case upon sections 1 and 18 of the Kansas Bill of
Rights." 241 Kan. at 671.
with Farley's holding, the Doctors argue the
Kansas Constitution Bill of Rights describes stronger rights
than the United States Constitution. In contrast, the State
argues the Kansas Bill of Rights does not recognize the same
rights as have been found to exist under the United States
Constitution. The parties have not cited, nor have we found,
a decision fully analyzing the divergent positions they pose.
Although Farley supports the Doctors' position,
the court did not explain its holding that section 1 affords
greater rights than the United States Constitution. In
addition, Farley did not deal with the personal
rights at issue in the present case.
the parties' arguments and Doctors' exclusive
reliance on the Kansas Constitution Bill of Rights require us
to now delve deeper into the differences between it and the
so raises questions of constitutional interpretation. The
standard applied by Kansas courts when interpreting the
Kansas Constitution was enunciated by this court in 1876.
There, it rejected a man's argument that a woman who
received more votes than he nevertheless was barred by her
gender from holding the office of superintendent of public
instruction then described in article 6 of the Kansas
Constitution because the same Constitution denied her the
right to vote in that race. The court stated:
"'[T]he best and only safe rule for ascertaining the
intention of the makers of any written law, is to abide by
the language they have used; and this is especially true of
written constitutions, for in preparing such instruments it
is but reasonable to presume that every word has been
carefully weighed, and that none are inserted, and none
omitted without a design for so doing.'" Wright
v. Noell, 16 Kan. 601, 607, 1876 WL 1081 (1876).
court has repeatedly quoted Wright as stating the
standard governing this court's constitutional
interpretation. See, e.g., State v. Spencer Gifts,
304 Kan. 755, 761, 374 P.3d 680 (2016); In re Estate of
Strader, 301 Kan. 50, 55, 339 P.3d 769 (2014);
Gannon v. State, 298 Kan. 1107, 1143, 319 P.3d 1196
(2014). When the words themselves do not make the
drafters' intent clear, courts look to the historical
record, remembering "'the polestar . . . is the
intention of the makers and
adopters.' [Citation omitted.]" Hunt v.
Eddy, 150 Kan. 1, 5, 90 P.2d 747 (1939); see State
ex rel. Stephan v. Finney, 254 Kan. 632, 655, 867 P.2d
courts conduct de novo review of issues requiring the
interpretation of constitutional provisions, which means
appellate courts are not bound by the interpretation of a
lower court. See Limon, 280 Kan. at 283.
begin our analysis of the issue of whether the Kansas
Constitution Bill of Rights protects a woman's right to
decide whether to continue a pregnancy by comparing the text
of section 1 and the Fourteenth Amendment. This comparison
highlights that Kansans chose to protect their
"inalienable natural rights," including their
we examine whether there is any support for the State's
argument that the framers of section 1 did not intend to
grant individual rights that could be judicially protected.
The historical record overwhelmingly shows an intent to
broadly and robustly protect natural rights and to impose
limitations on governmental intrusion into an
we explore the meaning of a "natural right." We do
so by examining the philosophical underpinnings of natural
rights, legal recognition of natural rights, the history of
state courts recognizing an enforceable natural right of
bodily integrity, and the recognition of the concepts of
liberty and the pursuit of happiness as including the right
to make decisions about parenting and procreation.
we consider whether these rights extend to women, as well as
men. This leads, fifth, to our examination of whether
protections extend to a pregnant woman's right to control
her body and to her right to decide whether to continue a
pregnancy. And, sixth, we consider the relevance of Kansas
territorial and state statutes that criminalized abortion.
analysis leads us to the conclusion that section 1 of the
Kansas Constitution Bill of Rights acknowledges rights that
are distinct from and broader than the United States
Constitution and that our framers intended these rights to be
judicially protected against governmental action that does
not meet constitutional standards. Among the rights is the
right of personal autonomy. 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 the Doctors, the lower
courts here, and various decisions from this court have
tended to lump sections 1 and 2 together, we base our
decision on section 1 alone because we find it sufficiently
protects the rights at stake.
Section 1 Identifies Rights Distinct from and Broader
than Those Listed in the Fourteenth Amendment; It
Provides a Nonexhaustive List of Natural Rights.
comparison of the text of section 1 of the Kansas Bill of
Rights, which was part of the Kansas Constitution ratified by
the territorial voters in October 1859, and the Fourteenth
Amendment to the United States Constitution, which was
ratified in 1868, reveals several differences in wording.
Again, section 1 states: "All men are possessed of equal
and inalienable natural rights, among which are life,
liberty, and the pursuit of happiness." And the
Fourteenth Amendment states, in relevant part, that no State
can "deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws."
side-by-side comparison reveals, section 1 contains the
following words not found in the Fourteenth Amendment:
"All men are possessed of equal and inalienable natural
rights." In fact, no provision of the United States
Constitution uses the term "natural rights"-i.e.,
"[a] right that is conceived as part of natural law and
that is therefore thought to exist independently of rights
created by government or society." Black's Law
Dictionary 1519 (10th ed. 2014); see Ogden v.
Saunders, 25 U.S. (12 Wheat.) 213, 319, 6 L.Ed. 606
(1827) (Trimble, J., opinion); 25 U.S. at 345 (Marshall,
C.J., opinion). This silence created an ambiguity as to
whether rights other than those listed are protected by the
United States Constitution. In contrast, the Kansas provision
lists certain rights-life, liberty, and the pursuit of
happiness-but indicates these are just among the natural
rights Kansans possess.
framers of the Kansas Constitution in 1859 were not alone in
adopting a natural rights provision. William Hutchinson, who
chaired the "Preamble and Bill of Rights" Committee
of the Wyandotte Constitutional Convention that initially
developed section 1, explained the history of natural rights
declarations to the other Convention delegates when he
submitted his committee's report, stating:
"It is a historical fact, that ever since the days of
King John, when the magna charta in favor of British freedom
was obtained by the English yeomanry, some declaration of
rights similar to the one presented by us, has been common
with the people of all countries; but it was not until 1776,
when that memorable Declaration of ours came into existence,
that the people cut loose from a narrow conception of
humanity, and entered upon that broad field of human liberty.
All the States [State Constitutions] since that day down to
[that of] the prospective State of Kansas, have contained a
similar instrument, that becomes as it were the timbers of
the building-the superstructure upon which the edifice of
State must be erected." Proceedings and Debates of the
Kansas Constitutional Convention (Drapier ed., 1859),
reprinted in Kansas Constitutional Convention 184-85
(1920) (hereinafter Convention).
time the Fourteenth Amendment to the United States
Constitution was ratified in "1868, twenty-four of the
thirty-seven state constitutions existing at that time,
nearly a two-thirds majority, contained provisions
guaranteeing inalienable, natural, or inherent rights of an
unenumerated rights type. Thus, in 1868, approximately 67% of
all Americans then living resided in states that
constitutionally protected unenumerated individual liberty
rights." Calabresi & Vickery, On Liberty and the
Fourteenth Amendment: The Original Understanding of the
Lockean Natural Rights Guarantees, 93 Tex. L. Rev. 1299,
1303 (2015) (Lockean Natural Rights
provisions in state constitutions, which are often referred
to as "Lockean Natural Rights Guarantees,"
originated with the Virginia Declaration of Rights of 1776.
The Virginia Declaration, principally drafted by George
Mason, relies heavily on the philosophy of John Locke. In
particular, Mason "endorsed the Lockean ideal that all
men retain some of their natural rights after subscribing to
the social compact, in contrast to the idea put forth by
Thomas Hobbes and Jean-Jacques Rousseau that men surrender
all their natural rights to the sovereign in exchange for
security and public order." 93 Tex. L. Rev. at 1314,
draft served not only as the model for many state
constitutions but also for portions of the Declaration of
Independence. 93 Tex. L. Rev. at 1318. As we will discuss in
more detail when looking at the history of the Kansas
Constitution, Kansas' section 1 was patterned after the
Declaration of Independence. Convention, at 283. Therefore,
we may, by this path, trace our section 1 to the Lockean
natural rights guarantees.
to the language of section 1, after using the phrase
"inalienable natural rights," it delineates three
rights: life, liberty, and the pursuit of happiness. The
framers made clear the list was not intended to be
exhaustive-rather, the listed rights are "among"
the inalienable natural rights recognized by the provision.
See Webster's New World College Dictionary 47 (5th ed.
2014) (defining "among" to mean "in the
company of; surrounded by; included with a group of").
Two of the three nonexclusive listed rights-life and
liberty-are mirrored in the Fourteenth Amendment, while
section 1's explicit inclusion of "pursuit of
happiness" is absent from the Fourteenth Amendment.
Section 1, however, does not list "property," while
the Fourteenth Amendment does. Whatever implications arise
from that omission need not be plumbed today, because section
1's broad declaration that all men are entitled to a
nonexhaustive list of inalienable natural rights clearly
reveals that section 1 recognizes a distinct and broader
category of rights than does the Fourteenth Amendment.
and notable language distinction between section 1 and the
Fourteenth Amendment arises from another phrase found in the
Amendment but not in section 1: "without due process of
law." In other words, the text of section 1 demonstrates
an emphasis on substantive rights-not procedural rights. In
contrast, the Fourteenth Amendment's use of "the
term 'due process' seem[s] to speak of procedural
regularity." Currie, The Constitution in the Supreme
Court: The First Hundred Years, 1789-1888, at 272 (1985).
Thus, section 1's focus on substantive rights removes
from our calculus one of the criticisms of Roe and
other decisions of the United States Supreme Court relying on
substantive due process rights under the Fourteenth
Amendment. See Roe, 410 U.S. at 173 (Rehnquist, J.,
The Historical Record of the Kansas Bill of Rights
Indicates Section 1 Describes Judicially Enforceable
State focuses on the omission of a due process clause from
section 1 to argue the rights listed there are aspirational
or hortatory and not enforceable or self-executing. Although
the State recognizes that the 1859 Wyandotte Constitutional
Convention delegates could not have considered the Fourteenth
Amendment's inclusion of the due process provision
because it was not ratified until nine years after voters
ratified the Kansas Constitution, it argues they could have
considered the Fifth Amendment to the United States
Constitution, which was ratified in 1791. The Fifth
Amendment, which applies only to the federal government,
provides: "No person shall . . . be deprived of life,
liberty, or property, without due process of law."
Because those attending the Wyandotte Convention could have
adopted a similar due process clause but did not, the rights
described in section 1 cannot be judicially enforced,
according to the State.
Kansas Constitution does include a due process provision,
however: section 18 of the Bill of Rights. It states:
"All persons, for injuries suffered in person,
reputation or property, shall have remedy by due course of
law . . . ." But the Wyandotte Convention delegates
simply chose to separate the provisions acknowledging
rights-for example, section 1-from the due process provision
in section 18.
the failure to combine sections 1 and 18 creates an ambiguity
that underlies the State's argument that section 1 does
not provide for judicially enforceable rights. To resolve
this potential ambiguity, we next examine the historical
record regarding the debates at the Wyandotte Convention as
well as the early caselaw interpreting section 1.
1 was incorporated into and adopted as part of the Kansas
Constitution that emerged from the Wyandotte Convention and
was subsequently ratified by the voters in October 1859. The
section has not been amended since that time.
Wyandotte Convention followed three other conventions: the
1855 Topeka convention at which free-state proponents
repudiated the positions on slavery by the 1855 proslavery
territorial legislature, the 1857 Lecompton convention
convened by the proslavery legislature in order to make
slavery an "inviolable" right of property, and the
1858 Leavenworth convention that decried the Lecompton
constitution. Congress rejected the constitution produced at
the Topeka convention, and Kansas territorial voters rejected
the constitution produced at the Lecompton convention. The
constitution from the Leavenworth convention was abandoned
when the Lecompton constitution was defeated. Thacher,
Address at the Quarter-Centennial Celebration: The Rejected
Constitutions, in 3 Kansas Historical Collections
1859, the Kansas Territorial Legislature called for another
constitutional convention, this one to be held in Wyandotte
for the purpose of producing a constitution that would be
acceptable both to the citizens of the prospective state and
to Congress. Elected delegates-all men-included eighteen
lawyers, sixteen farmers, eight merchants, three
manufacturers, three physicians, a mechanic, a land agent, a
printer, and a surveyor. See generally Simpson, The
Wyandotte Constitutional Convention, in 2
Kansas Historical Collections 236, 236-38 (1881).
majority of the delegates who voted chose to use the Ohio
Constitution as the foundation for the one they would craft.
Perdue, Address Before the Kansas State Historical Society:
The Sources of the Constitutions of Kansas, in 7
Kansas Historical Collections 130, 131-32 (1902). At the end
of the convention, sections 2 through 20 of the Bill of
Rights mirrored those same sections in the Ohio Constitution.
Perdue, at 133-34.
1, however, followed a different path, and it "was the
only one that led to an extended debate." Perdue, at
134. The first proposed text of section 1 derived from the
previous constitutions drafted at the Topeka and Leavenworth
conventions and was presented by the Preamble and Bill of
Rights Committee. It stated:
"All men are by nature equally free and independent, and
have certain inalienable rights, among which are those of
enjoying and defending their lives and liberties, acquiring,
possessing, and protecting property, and of seeking and
obtaining happiness and safety, and the right of all men to
the control of their persons, exists prior to law and is
inalienable." Convention, at 187.
the Wyandotte Convention debates regarding section 1, the
chairman of that committee, William Hutchinson, commented on
the reasons for having an expansive section 1 that protects
"This is the first section of our bill of rights. What
is a bill of rights? It is a mere declaration of the natural
rights of man. And in summing up these rights, it is not to
be supposed that we will come down to any narrow, contracted
conception of them-that we will use the pocket compass of
legislation-but it is to be supposed that we will look on the
bright side-will take a fair and independent view of the
rights of man, aside from the restrictions of law and civil
government of any character. . . . It is but a declaration of
those natural rights of man that have been acknowledged from
the foundation of this government." Convention, at
concepts remained a focal point of all the proposals for
section 1. In short, the drafters made no attempt to list all
rights; they incorporated the broad concept of natural rights
(by using that term or substitute descriptions), and they
expressed a desire to protect those rights from government
the apparent consensus on these concepts, reaching agreement
on the specific wording proved problematic.
Topeka constitution had used nearly the same language as
proposed by the Hutchinson committee through the word
"safety" where the provision ended. The proslavery
Lecompton constitution was quite different, allowing rights
for only "freemen." The Leavenworth convention
returned to the Topeka constitution language but added the
words, "and the right of all men to the control of their
persons exists prior to law and is inalienable." These
"changes in the phraseology [were] made by the
Leavenworth committee, with the definite purpose of
antagonizing the proslavery sentiment." Perdue, at 134.
The antagonism carried over to the Wyandotte Convention.
proslavery delegate to the Wyandotte Convention expressed the
opinion that section 1 "was brought forward here for the
express purpose of setting the fugitive slave law of the
United States at defiance." The delegate went on to
explain that section 1 would operate as a "'liberty
bill'" for any fugitive slave who entered the state.
Convention, at 274; see Waters, Address Before the Kansas
State Historical Society: Fifty Years of the Wyandotte
Constitution, in 11 Kansas Historical Collections
47, 49 (1910). Other delegates concurred with this view, and
several debated whether including the wording would cause
Congress to reject the constitution because of a potential
conflict with the federal fugitive slave law. Convention, at
274-81. Delegates also expressed concern that giving
inalienable control of a man's person would mean the
state "cannot make a man amenable to any criminal
law." Convention, at 272.
other delegates countered that these concerns were unfounded,
the "extended" and "violent" debate
continued. Several amendments or outright substitutions were
proposed. Convention, at 272-82; Perdue, at 134. "To
pour oil upon the troubled waters, the first section of the
Ohio bill of rights was twice introduced. The first time it
was voted down, and the second declared out of order."
Perdue, at 134. It read: "'All men are, by nature,
free and independent, and have certain inalienable rights,
among which are those of enjoying and defending life and
liberty, acquiring, possessing, and protecting property, and
seeking and obtaining happiness and safety.'"
Convention, at 272.
the chair of the convention's Judiciary Committee, a
lawyer from Hiawatha named Samuel A. Kingman, who two years
later became a justice of this court and who eventually
served as its Chief Justice from 1867 to 1876, proposed the
current wording of section 1: "'All men are
possessed of equal and inalienable natural rights, among
which are those of life, liberty and the pursuit of
happiness.'" Convention, at 282-83.
indicated he could support earlier proposals that granted all
men inalienable rights but he preferred his variation based
on the Declaration of Independence, which states: "[A]ll
men are created equal, that they are endowed by their Creator
with certain unalienable Rights, that among these are Life,
Liberty and the pursuit of Happiness." Convention, at
282-83. Kingman explained the reasons for using similar
language when proposing section 1: "We all cling to old
truths, . . . and our national Declaration of Independence is
of this class of truth. . . . I think the amendment I have
read, in these old terms, is broad enough. It will show no
man's prejudices, and it is broad enough for all to stand
upon." Convention, at 283. Kingman's proposal was
adopted by a vote of 42 to 6. Convention, at 285.
Constitution containing Kingman's section 1 language was
subsequently approved by Kansas Territory citizens by a vote
of 10, 421 to 5, 530. Following the election of Abraham
Lincoln as our sixteenth President and the secession of
several southern states in 1861, Congress voted to admit
Kansas to the Union as a free state, and President James
Buchanan signed the admission bill during his last weeks as
our fifteenth president on January 29, 1861. Sutton, Stark
Mad Abolitionists 123-25 (2017).
broad wording of Kansas' section 1, with its unenumerated
natural rights guarantee, was not unlike the natural rights
guarantees in at least 14 other states' constitutions in
place at the time of the Wyandotte Convention. Although the
wording of each state's constitutional natural rights
guarantee varied, the provisions shared three
characteristics. They (1) "affirmed the freedom or
equality of men (or both)"; (2) "guaranteed
inalienable, inherent, or natural rights"; and (3)
"guaranteed a right to enjoy life, liberty,"
property, the pursuit of happiness, or some combination of
these words. Lockean Natural Rights Guarantees, 93
Tex. L. Rev. at 1305-06, 1444-48.
these provisions in cases decided before Kansas convened the
1859 Wyandotte Convention, the courts in many of these 14
states had enforced unenumerated rights through judicial
orders. 93 Tex. L. Rev. at 1311-12, 1444-48 (surveying
natural rights guarantees in 24 state constitutions-16 of
which predated Kansas'-ratified before the adoption of
the Fourteenth Amendment and surveying court decisions in
these states). These cases provided a context for how these
natural rights guarantees would have been viewed at the time
of the Wyandotte Convention, and several conclusions that can
be drawn from these cases inform our interpretation of
these cases "make it crystal clear that the Lockean
Natural Rights Guarantees did mean something. They
did not function as simply vague, preambular language but
were instead applied with varying degrees of judicial vigor
to decide some of the most challenging and controversial
issues of the day." 93 Tex. L. Rev. at 1440. Professor
Steven G. Calabresi and Sofia M. Vickery addressed the
question posed by the State in this case: Are these
guarantees merely hortatory and not enforceable? They
answered the guarantees were neither, "after
exhaustively studying the case law applying the Lockean
Natural Rights Guarantees from the founding of the Republic
until 1868" and concluding that "the Guarantees
protected rights grounded in natural law . . . ." 93
Tex. L. Rev. at 1304.
the "state supreme courts applied the Lockean Natural
Rights Guarantees to an enormous variety of topics,
suggesting an understanding during this time that the Lockean
Natural Rights Guarantees protected a vast range of
unenumerated rights." 93 Tex. L. Rev. at 1442. For
example, state supreme courts had invoked the rights
guarantees in cases dealing with a number of civil and
political rights, including: "(1) freedom of religion;
(2) the right of marriage; (3) the involuntary confinement
and transportation of the poor; (4) retroactive legislation;
(5) the constitutionality of statutes imposing or exempting
tort liability"; and (6) a variety of other issues that
"show the far-reaching nature of the state court's
consideration of liberty and natural or unalienable rights
for a very broad range of fact patterns." 93 Tex. L.
Rev. at 1364-82.
contrary to the State's argument, at the time the Kansas
Bill of Rights was written and ratified in 1859, provisions
like section 1 were widely accepted as guaranteeing natural
rights enforceable via court proceedings.
Hutchinson, and the other delegates to the 1859 Wyandotte
Convention had this background information when they chose
the wording for section 1. We know from the statements of
Hutchinson, chair of the Preamble and Bill of Rights
Committee, and Kingman, chair of the Judiciary Committee,
that section 1's language was intended to be "broad
enough for all to stand upon" and that it not be
"any narrow, contracted conception" of rights but
"a fair and independent view of the rights of man, aside
from the restrictions of law and civil government of any
character." Convention, at 281-83. This intent has been
repeatedly recognized in the caselaw of this court.
1876, David Brewer, who at that time was a justice of this
court but who became a justice of the United States Supreme
Court in 1889, explained that the Kansas Constitution had
retained a wide range of individual rights. Writing for a
unanimous court that included Chief Justice Kingman, Justice
"'All political power is inherent in the
people,' and all powers not delegated by the constitution
remain with them. These truths, which lie at the foundation
of all republican governments, are distinctly asserted in our
own bill of rights, §§ 2 and 20. By the
constitution the people have granted certain powers, and to
that extent have restricted and limited their own action. But
beyond those restrictions, and except as to matters guarded
by absolute justice, and the inherent rights of the
individual, the power of the people is unlimited."
Wright, 16 Kan. at 603.
Brewer also explained in several decisions he authored while
on this court that the rights in section 1 were judicially
enforceable. In one case, counsel argued that "the bill
of rights is not to be considered as containing precise
limitations upon power, but rather only comprehensive
statements of general truths; that it is more in the nature
of a guide to the legislature, than a test for the
courts." Atchison Street Rly. Co. v. Mo. Pac. Rly.
Co., 31 Kan. 660, 664, 3 P. 284 (1884). In rejecting
this argument about the Bill of Rights, Justice Brewer wrote:
"The bill of rights is something more than a mere
collection of glittering generalities: some of its sections
are clear, precise and definite limitations on the powers of
the legislature and all other officers and agencies of the
state; and while others are largely in the nature of general
affirmations of political truths, yet all are binding on
legislatures and courts, and no act of the legislature
can be upheld which conflicts with their provisions, or
trenches upon the political truths which they affirm."
(Emphasis added.) 31 Kan. 660, Syl. ¶ 1.
with these declarations, this court later recognized a
natural right to contract in 1899. See The State v.
Wilson, 61 Kan. 32, 36, 58 P. 981 (1899); see also
Ogden, 25 U.S. at 345 (Marshall, C.J., opinion)
(recognizing right to contract as a "natural
right"). A few years after Wilson, citing
section 1 along with its discussion of the Fourteenth
Amendment, this court recognized the right of "[e]very
citizen . . . to work where and for whom he will" and a
natural right prohibiting one person from being compelled to
provide personal services to another. Brick Co. v.
Perry, 69 Kan. 297, 298-300, 76 P. 848 (1904).
in a case relied on by the State and the Court of
Appeals' dissenting opinion (Hodes, 52
Kan.App.2d at 339), this court in Schaake v. Dolley,
85 Kan. 598, 118 P. 80 (1911), seemed to distance itself from
these prior decisions. Referring to Justice Brewer's
words in Atchison Street Rly. Co., the
Schaake court first noted that section 1 of the
Kansas Constitution Bill of Rights "is a political maxim
addressed to the wisdom of the legislature and not a
limitation upon its power. It is not a mere 'glittering
generality' and can not be entirely disregarded in any
valid enactment." 85 Kan. at 601. But, according to
Schaake, "it lacks the definiteness, certainty
and precision of a rule . . . and consequently can not . . .
furnish a basis for the judicial determination of specific
controversies." 85 Kan. at 601.
this statement from Schaake supports the State's
position here. Nevertheless, it stands in sharp contrast to
the court's previous decisions. In addition, it stands
apart from later ones. Just three years after
Schaake, this court again embraced the rationale
that the Bill of Rights provided enforceable rights, this
time in the context of section 2. Winters v. Myers,
92 Kan. 414, 140 P. 1033 (1914).
Winters, the court noted the "glittering
generalities" discussions in Atchison Street Rly.
Co. and Schaake and assessed how those
discussions applied to section 2, which states, in part:
"All political power is inherent in the people, and all
free governments are founded on their authority, and are
instituted for their equal protection and benefit."
Discussing that language, the Winters court looked
to decisions from Wisconsin and Ohio, including one that
dealt with a provision much like section 1. In that Wisconsin
decision, the court stated:
"This may be said to be somewhat vague and general,
-somewhat in the nature of rhetorical flourish; but when it
is said that all men equally free have the inherent rights of
life, liberty, and the pursuit of happiness, it is certain
that it is not meant that some have or may have greater
privileges before the law than others. The phrase must mean
equality before the law, if it means anything."
Black v. State, 113 Wis. 205, 219, 89 N.W. 522
(1902), quoted in Winters, 92 Kan. at 422.
Winters court found this "vigorous
language" persuasive, concluding that section 2 of the
Kansas Constitution Bill of Rights, "while declaring a
political truth, does not permit legislation which trenches
upon the truth thus affirmed. To this extent at least it
must, like other constitutional provisions, be interpreted
with sufficient liberality to carry into effect the
principles of government which it embodies." 92 Kan. at
thereafter, this court made clear that section 1 also could
be enforced in the courts as a protection against legislation
that impeded the exercise of individual rights. In
Wilson, 101 Kan. 789, this court recognized that an
act suppressing the use of trading stamps would violate the
right to contract guaranteed in section 1 if it was an
improper use of the State's police power. In resolving
the question, the Wilson court looked to caselaw in
which the United States Supreme Court had upheld similar
legislation, holding it did not violate the Fourteenth
Amendment to the United States Constitution. The
Wilson court noted: "These decisions are of
course conclusive so far as concerns any of the guaranties of
the constitution of the United States, and are highly
persuasive with respect" to sections 1 and 2 of the
Kansas Constitution Bill of Rights. 101 Kan. at 795.
discussion, the court, for the first time, used the phrase
that has often been repeated in Kansas cases for more than
100 years when it stated that sections 1 and 2 "are
given much the same effect as the clauses of the fourteenth
amendment relating to due process of law and equal
protection." 101 Kan. at 796. The liberty interest found
in the Fourteenth Amendment included
"'the right of the citizen to be free in the
enjoyment of all his faculties; to be free to use them in all
lawful ways; to live and work where he will; to earn his
livelihood by any lawful calling; to pursue any livelihood or
avocation, and for that purpose to enter into all contracts
which may be proper, necessary and essential to his carrying
out to a successful conclusion the purposes above
mentioned.'" 101 Kan. at 796 (quoting Allgeyer
v. Louisiana, 165 U.S. 578, 589, 17 S.Ct. 427, 41 L.Ed.
recently, this court recognized the importance of protecting
the people's inalienable rights to life, liberty, and the
pursuit of happiness:
"So there could be no mistake about its object and
purpose, the American Republic officially and with the first
breath of its new life declared, 'that all men are
created equal, that they are endowed by their Creator with
certain unalienable Rights, that among these are Life,
Liberty and the pursuit of Happiness. That to secure these
rights, Governments are instituted among Men, deriving their
just powers from the consent of the governed.' (The
Declaration of Independence.) This is the American
proclamation of freedom and equality, and the individual
worth of a single human being." Harris v.
Shanahan, 192 Kan. 183, 204, 387 P.2d 771 (1963).
from that passage, this court has held that "[t]he
[Kansas] Bill of Rights protects the basic liberties which
inure to each person at birth"-i.e., natural rights.
Kansas Malpractice Victims Coalition v. Bell, 243
Kan. 333, 341, 757 P.2d 251 (1988), disapproved on other
grounds by Bair v. Peck, 248 Kan. 824, 811 P.2d 1176
(1991). Furthermore, as we previously noted, in
Farley, 241 Kan. at 671, this court held:
"[T]he Kansas Constitution affords separate, adequate,
and greater rights than the federal Constitution."
discussion illustrates, this court has determined, as have
other courts, that section 1 or similar provisions describe a
wide range of judicially enforceable rights, even if the
provisions do not contain a due process clause and are stated
in generalities. See Lockean Natural Rights
Guarantees, 93 Tex. L. Rev. at 1305 (recognizing
"the Lockean Natural Rights Guarantees [found in state
constitutions] might support the holdings" of the United
States Supreme Court).
dissent has opined that section 1 simply was to guarantee
"Kansans their first rights of republican self-rule.
Namely, the right to participatory consent to government for
the benefit of the common welfare, on the one hand, and the
right to otherwise be free from arbitrary, irrational, or
discriminatory regulation that bears no reasonable
relationship to that same common welfare, on the other."
Slip op. at 169.
Lincoln, whom the dissent cites freely (slip op. at 146-51),
would not be quite so dismissive-particularly on the
existence of equal "natural rights." In
Lincoln's speech at Springfield, Illinois, on June 26,
1857-just two years before the Wyandotte Convention-he
"briefly expressed [his] view of the meaning
and objects of that part of the Declaration of
Independence which declares that 'all men are created
equal.''' Hirsch and Van Haften, Abraham Lincoln
and the Structure of Reason, app. A, at 262 (2010).
expressing his view of this phrase, Lincoln declared that
United States Senator Stephen A. Douglas and United States
Supreme Court Chief Justice Roger Taney, author of Dred
Scott v. Sandford, 60 U.S. (19 How.) 393, 15 L.Ed. 691
(1857) (denying equality to black men), were doing
"obvious violence to the plain unmistakable language of
the Declaration. . . . [T]he authors of that notable
instrument intended to include all men, but they did
not intend to declare all men equal in all
respects." Hirsch and Van Haften, app. A, at 262.
made clear that in articulating equality the
Declaration's authors "did not mean to say all were
equal in color, size, intellect, moral developments, or
social capacity"-but equal in certain inalienable
rights: "They defined with tolerable distinctness, in
what respects they did consider all men created equal-equal
in 'certain inalienable rights, among which are life,
liberty, and the pursuit of happiness.' This they said,
and this meant." Hirsch and Van Haften, app. A, at 262.
"They did not mean to assert the obvious untruth, that
all were then actually enjoying that equality, nor yet, that
they were about to confer it immediately upon them. In fact
they had no power to confer such a boon. They meant simply to
declare the right, so that the enforcement
of it might follow as fast as circumstances should
permit." Hirsch and Van Haften, app. A, at 262.
his view of the object, i.e., purpose, of their statement of
equality, Lincoln reasoned:
"They meant to set up a standard maxim for free society,
which should be familiar to all, and revered by all;
constantly looked to, constantly labored for, and even though
never perfectly attained, constantly approximated, and
thereby constantly spreading and deepening its influence, and
augmenting the happiness and value of life to all people of
all colors everywhere. The assertion that 'all men
are created equal' was of no practical use in effecting
our separation from Great Britain; and it was placed in the
Declaration, not for that, but for future use."
(Emphasis added.) Hirsch and Van Haften, app. A, at 262.
most certainly was not suggesting the breadth of the
State's police power that the dissent advocates. We do
not disagree with the dissent's position that the people
have given the State the power to act only when it does so
reasonably and for the common welfare. But based on our
Constitution, we fervently object to the dissent's
assertion that the State can use this power to do anything it
desires so long as it passes that test. The State's
police power is limited by the language borrowed from the
Declaration of Independence and purposely included in our
Bill of Rights-the language explicitly acknowledging that
"[a]ll men are possessed of equal and inalienable
natural rights." It is clear that Lincoln and an
overwhelming majority of the delegates at the Wyandotte
Convention saw these words as more than rhetorical
flourishes. The language recognized rights that to be
meaningful-as they were certainly meant to be-had to be
enforced and protected by courts. So when the State attempts
to use its police power to unconstitutionally encroach on
these inalienable rights, we have an obligation to
ensure it does not. As this court stated more than 50 years
ago, "the judiciary . . . has imposed upon it the
obligation of interpreting the Constitution and of
safeguarding the basic rights reserved thereby to the
people." Harris, 192 Kan. at 206.
on this review of section 1, the Fourteenth Amendment, the
differences between them, and the statements of intent by
delegates at the Wyandotte Constitutional Convention, we
conclude section 1 establishes the judicial enforceability of
rights that are broader than and distinct from the rights
described in the Fourteenth Amendment.
Natural Rights Include a Right to Personal Autonomy that
Allows Us to Make Decisions Regarding Our Bodies, Our Health
Care, Family Formation, and Family Life.
now to the specific questions of what a natural right entails
and whether it includes a woman's right to decide whether
to continue a pregnancy.
common-law terms are used in the Kansas Constitution Bill of
Rights, courts should look to common-law definitions for
their meaning. Addington v. State, 199 Kan. 554,
561, 431 P.2d 532 (1967); The State v. Criqui, 105
Kan. 716, 719-20, 185 P. 1063 (1919).
"'It is also a very reasonable rule that a state
constitution shall be understood and construed in the light
and by the assistance of the common law, and with the fact in
view that its rules are still left in force. By this we do
not mean that the common law is to control the constitution,
. . . but only that for its definitions we are to draw from
that great fountain, and that in judging what it means we are
to keep in mind that it is not the beginning of law for the
state, but that it assumes the existence of a well-understood
system which is still to remain in force and be administered,
but under such limitations and restrictions as that
instrument imposes.'" Criqui, 105 Kan. at
719-20 (quoting Cooley Const. Lim., 7th ed. p. 94).
section 1 recognizes "natural rights," we must
investigate the historical- the common-law-basis for
determining whether an asserted right can be labeled a
"natural right." Consequently, we turn to that
as our prior discussion of the early caselaw of this court
reveals, we have been willing to identify "natural
rights." Further, the historical record of the Wyandotte
Convention reveals the framers of section 1 looked to and
adopted the language of the Declaration of Independence. In
writing that document, Thomas Jefferson looked to the
Virginia Declaration of Rights of 1776, written by George
Mason, who, in turn, looked to the writings of Locke.
Lockean Natural Rights Guarantees, 93 Tex. L. Rev.
at 1316, 1318; Convention, at 283. In light of this
foundation of section 1, Locke's views on natural rights
identified the law of nature as the source of inalienable
individual rights. He wrote that man is born "with a
Title to perfect Freedom, and an uncontrouled enjoyment of
all the Rights and Priviledges of the Law of Nature, equally
with any other Man, or Number of Men in the World" and
thus possesses "a Power . . . to preserve his Property,
that is, his Life, Liberty and Estate, against the Injuries
and Attempts of other Men." Locke, Two Treatises of
Government, Bk. II, § 87 (Gryphon special ed. 1994)
present case, the Doctors assert that the following natural
rights underlie the right of a woman to decide whether to
continue a pregnancy: personal autonomy and decision-making
about issues that affect one's physical health, family
formation, and family life. To test these assertions, we look
to the historical and philosophical basis for considering
those rights as "natural."
The Philosophy of Locke and Others Recognized Personal
Autonomy and Bodily Integrity as Natural Rights.
observed that "every Man has a Property in his
own Person." Two Treatises, Bk. II, § 27.
He also wrote about the components of autonomy, bodily
integrity, and self-determination, noting that "so far
as a man has power to think, or not to think: to move or not
to move, according to the preference or direction of his own
mind; so far is a man free." Locke, An Essay Concerning
Human Understanding, Bk. II, ch. 21, § 8 (27th ed.
political philosophers and legal writers uniformly maintained
that one's control over one's own person stands at
the heart of the concept of liberty, one of the enumerated
natural rights in section 1.
in 1642, in his Second Institute, Commentary on Magna Carta,
Sir Edward Coke observed that an ordinance setting
requirements on the clothes that certain merchants could wear
was against the law of the land, "because it was against
the liberty of the subject, for every subject hath freedom to
put his clothes to be dressed by whom he will." See
Pound, The Development of Constitutional Guarantees of
Liberty 47-48, 150 (1975).
Blackstone in his Commentaries identified the private rights
to life, liberty, and property as the three
"absolute" rights-so called because they
"appertain[ed] and belong[ed] to particular men, merely
as individuals," not "to them as members of society
[or] standing in various relations to each other"-that
is, not dependent upon the will of the government. 1
Blackstone, Commentaries on the Laws of England *123, *129-38
(1765). American courts reaffirmed these observations in
applying the common law in this country. See, e.g., State
v. Moore, 42 N.J.L. 208, 13 Vroom 208 (1880) (quoting 1
Blackstone, at *134: "[T]he law . . . regards, asserts
and preserves the personal liberty of individuals.").
Letter to the Sheriffs of Bristol in 1777, the conservative
philosopher Edmund Burke, writing about the American
Revolution, reflected the spirit of his times when he
"[I]t ought to be the constant aim of every wise public
counsel to find out by cautious experiments, and rational,
cool endeavors, with how little, not how much, . . .
restraint [on liberty] the community can subsist: for liberty
is a good to be improved, and not an evil to be lessened. It
is not only a private blessing of the first order, but the
vital spring and energy of the state itself, which has just
so much life and vigor as there is liberty in it."
Burke, Selected Works 211 (Bate ed., 1960).
Madison wrote that a person has an inviolable interest in the
"safety and liberty" of one's person. Madison,
Essay on Property for the National Gazette (Mar. 27,
1792), in 14 The Papers of James Madison 266
(Rutland & Mason et al. eds., 1983).
James Kent, in his Commentaries on American Law, Volume 2,
Lecture 24, at 1 (1827), spoke of the right of personal
liberty as one of the "absolute rights of
individuals." See McMasters v. West Chester State
Normal School, 13 Pa. C.C. 481, 2 Pa. D. 753, 757
(1893); see also United States v. Verdugo-Urquidez,
856 F.2d 1214, 1220 (9th Cir. 1988) (quoting 2 Kent, at 1;
right of personal liberty in the United States considered
"'natural, inherent, and unalienable'"),
rev'd on other grounds 494 U.S. 259, 110 S.Ct.
1056, 108 L.Ed.2d 222 (1990).
The United States Supreme Court Has Recognized the
Natural Right of Personal Autonomy.
natural right to personal autonomy has been recognized by the
United States Supreme Court for more than 120 years.
1891, the Supreme Court recognized that "[n]o right is
held more sacred, or is more carefully guarded, by the common
law, than the right of every individual to the possession and
control of his own person." Union Pacific Railway
Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 35
L.Ed. 734 (1891).
about that same time, future United States Supreme Court
Justice Louis Brandeis wrote of the "general right of
the individual to be let alone," which is a component of
the "inviolate personality" of human beings. Warren
& Brandeis, The Right to Privacy, 4 Harv. L.
Rev. 193, 205 (1890). And he elaborated on this concept
nearly 40 years later in Olmstead v. United States,
277 U.S. 438, 478, 48 S.Ct. 564, 72 L.Ed. 944 (1928)
(Brandeis, J., dissenting):
"The makers of our Constitution undertook to secure
conditions favorable to the pursuit of happiness. They
recognized the significance of man's spiritual nature, of
his feelings and of his intellect. They knew that only a part
of the pain, pleasure and satisfactions of life are to be
found in material things. They sought to protect Americans in
their beliefs, their thoughts, their emotions and their
sensations. They conferred, as against the Government,
the right to be let alone-the most comprehensive of
rights and the right most valued by civilized men."
when the State regulates health care, demands some medical
action such as an immunization, or eliminates treatment
options in the interests of public health, safety, and
welfare, the government still cannot intrude on a
person's control of his or her own body when doing so
will cause harm to the individual. See Jacobson v.
Massachusetts, 197 U.S. 11, 39, 25 S.Ct. 358, 49 L.Ed.
643 (1905) (upholding mandatory vaccination regulation and
its authorizing state statute only because of presumption
that legislature intended exceptions where individual could
establish he or she "is not at the time a fit subject of
vaccination or that vaccination, by reason of his [or her]
then condition, would seriously impair his health or probably
cause his [or her] death").
State Courts, Including This Court, Have Recognized an
Enforceable Natural Right to Bodily Integrity.
state courts have reached the same conclusion as the United
States Supreme Court. In Illinois, "under a free
government at least, the free citizen's first and
greatest right, which underlies all others-the right to the
inviolability of his person, in other words, his right to
himself-is the subject of universal acquiescence."
Pratt v. Davis, 118 Ill.App. 161, 166 (1905),
aff'd 224 Ill. 300, 79 N.E. 562 (1906). New
York's highest court has held: "Every human being of
adult years and sound mind has a right to determine what
shall be done with his own body . . . ."
Schloendorff v. Society of New York Hospital, 211
N.Y. 125, 129-30, 105 N.E. 92 (1914), abrogated on other
grounds by Bing v. Thunig, 2 N.Y.2d 656, 163 N.Y.S.2d 3,
143 N.E.2d 3 (1957). And the Florida Supreme Court has stated
that "everyone has a fundamental right to the sole
control of his or her person." In re Guardianship of
Browning, 568 So.2d 4, 10 (Fla. 1990).
interpreting a provision in the Pennsylvania Constitution
providing for the rights of enjoying and defending life and
liberty, the acquisition and protection of property, and the
pursuit of happiness, the Pennsylvania Supreme Court stated:
"The greatest joy that can be experienced by mortal man
is to feel himself master of his fate, -this in small as well
as in big things. Of all the precious privileges and
prerogatives in the crown of happiness which every American
citizen has the right to wear, none shines with greater
luster and imparts more innate satisfaction and soulful
contentment to the wearer than the golden, diamond-studded
right to be let alone. Everything else in comparison is dross
and sawdust." Commonwealth v. Murray, 423 Pa.
37, 51, 223 A.2d 102 (1966) (plurality opinion).
Alaska Supreme Court has concluded that exercising control
over one's body "involves the kind of
decision-making that is 'necessary for . . . civilized
life and ordered liberty.'" Valley Hosp.
Ass'n v. Mat-Su Coalition, 948 P.2d 963, 968 (Alaska
1997) (quoting Baker v. City of Fairbanks, 471 P.2d
386, 401-02 [Alaska 1970]). And Mississippi's highest
court has held: "Each of us has a right to the
inviolability and integrity of our persons, a freedom to
choose or a right of bodily self-determination, if you
will." In re Brown, 478 So.2d 1033, 1039 (Miss.
court has recognized the same principles, stating:
"Anglo-American law starts with the premise of
thorough-going self determination. It follows that each man
is considered to be master of his own body, and he may, if he
be of sound mind, expressly prohibit the performance of
life-saving surgery, or other medical treatment."
Natanson v. Kline, 186 Kan. 393, 406-07, 350 P.2d
1093, decision clarified on denial of reh'g 187
Kan. 186, 354 P.2d 670 (1960).
these court-recognized principles acknowledging the
natural-law right to control one's own body and to
exercise self-determination stands firmly on the shoulders of
the Lockean philosophies embraced in section 1's natural
rights, which include liberty and the pursuit of happiness.
And these concepts of control over one's body and of
self-determination have roots in common law, as the United
States Supreme Court noted in Union Pacific Railway Co.
v. Botsford, 141 U.S. at 251, and as this court noted in
Natanson v. Kline, 186 Kan. at 406-07.
State argues, however, that the men at the Wyandotte
Convention rejected control over one's body as a
constitutionally protected right. This argument is based on
failure of the convention delegates to adopt the version of
section 1 that would have protected property, happiness, and
"the right of all men to the control of their
persons." Convention, at 271.
State is wrong to attribute such significance to this
rejection. The historical record shows this provision was a
taunt to the proslavery delegates at the Leavenworth
convention, and the animosity and distrust from that
experience obviously tainted the debate in Wyandotte.
Convention, at 271-85; see Waters, at 49. Ultimately, the
language of section 1 is better understood as continuing a
guarantee of natural rights, which include control over
one's own body, by using the familiar and revered wording
of the Declaration of Independence.
Concepts of Liberty and the Pursuit of Happiness Include
a Right to Make Decisions About Parenting and
principles also underlie a recognition that section 1
encompasses a natural right to make decisions about parenting
described the rights related to the relationship between a
man and a woman as it impacts procreation as follows:
"Conjugal Society is made by a voluntary Compact between
Man and Woman, and tho' it consist chiefly in such a
Communion and Right in one anothers [sic] Bodies, as
is necessary to its chief End, Procreation; yet it draws with
it mutual Support and Assistance; and a Communion of Interest
too, as necessary not only to unite their Care and Affection,
but also necessary to their common Off-spring, who have a
Right to be nourished and maintained by them, till they are
able to provide for themselves." Two Treatises, Bk. II,
similar views, the United States Supreme Court has
acknowledged that the rights "to marry, establish a home
and bring up children" were "long recognized at
common law as essential to the orderly pursuit of happiness
by free men." Meyer v. Nebraska, 262 U.S. 390,
399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). In Eisenstadt v.
Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 31 L.Ed.2d 349
(1972), the Court made additional statements similar to
Locke's, noting that a "couple is not an independent
entity with a mind and heart of its own, but an association
of two individuals each with a separate intellectual and
emotional makeup." The Court recognized the right
"to be free from unwarranted governmental intrusion into
matters so fundamentally affecting a person as the decision
whether to bear or beget a child" applied to each
"individual, married or single." 405 U.S. at 453.
significantly, in Chapsky v. Wood, 26 Kan. 650, 652,
1881 WL 1006 (1881), this court recognized that the
parent-child relationship is rooted in the "law of
heart of a natural rights philosophy is the principle that
individuals should be free to make choices about how to
conduct their own lives, or, in other words, to exercise
personal autonomy. Few decisions impact our lives more than
those about issues that affect one's physical health,
family formation, and family life. We conclude that this
right to personal autonomy is firmly embedded within section
1's natural rights guarantee and its included concepts of
liberty and the pursuit of happiness.
Section 1 Guarantees Women, as well as Men, the Right of
that women were not allowed as delegates to the Wyandotte
Convention or as voters on the resultant Constitution's
ratification, one might question whether the Convention
delegates intended to acknowledge in section 1 that women
possessed these natural rights. But the record reveals they
did. The dissent more fully discusses the historical context,
and Kingman clearly explained as much in his report to the
convention. He directly stated that "[s]uch rights as
are natural are now enjoyed as fully by women as men."
Convention, at 169.
first glance, the sincerity of Kingman's comment seems
questionable. After all, he chaired the Judiciary Committee
that had considered and denied a petition asking for female
suffrage. But the Convention record explains that Kingman and
the other delegates distinguished between natural and
political rights. After noting that women should have natural
rights, Kingman continued by saying on behalf of the
committee that "[s]uch rights and duties as are merely
political in their character, they should be relieved from,
that they have more time to attend to those 'greater and
more complicated responsibilities' which, petitioners
claim and your committee admits, devolve upon women."
Convention, at 169. The comments by Kingman and his committee
reflect that society's attitude regarding women at the
time was not in step with the natural rights guarantee in
section 1. We discuss what impact this has on our analysis in
core of the natural rights of liberty and the pursuit of
happiness 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 ability
enables decision-making about issues that affect one's
physical health, family formation, and family life. Each of
us has the right to make self-defining and self-governing
decisions about these matters.
Section 1's Protections Extend to a Pregnant
Woman's Right to Control Her Own Body.
a pregnant woman the ability to determine whether to continue
a pregnancy would severely limit her right of personal
autonomy. And abortion laws do not merely restrict a
particular action; they can impose an obligation on an
unwilling woman to carry out a long-term course of conduct
that will impact her health and alter her life. Pregnancy
often brings discomfort and pain and, for some, can bring
serious illness and even death. The New Mexico Supreme Court
described some of these health concerns:
"[T]here is undisputed evidence in the record that
carrying a pregnancy to term may aggravate pre-existing
conditions such as heart disease, epilepsy, diabetes,
hypertension, anemia, cancer, and various psychiatric
disorders. According to these sources, pregnancy also can
hamper the diagnosis or treatment of a serious medical
condition, as when a pregnant woman cannot receive
chemotherapy to treat her cancer, or cannot take psychotropic
medication to control symptoms of her mental illness, because
such treatment will damage the fetus." New Mexico
Right to Choose/NARAL v. Johnson, 126 N.M. 788, 855, 975
P.2d 841 (1998).
list of ways the government's restriction on abortion can
have an impact on a woman's ability to control her own
body and the course of her life could continue at length. In
summary, "[t]he decision whether to obtain an abortion
is fraught with specific physical, psychological, and
economic implications of a uniquely personal nature for each
woman." In re T.W., 551 So.2d 1186, 1193 (Fla.
1989). Other courts with natural rights constitutional
guarantees similar to Kansas' have reached the same
conclusion. Some have done so based on privacy, but others
have reached the conclusion because of constitutional
protections of inalienable natural rights such as
liberty-guarantees like that in the Kansas Constitution Bill
the Wyandotte Convention delegates rejected article I,
section 1 of the Ohio Constitution in favor of Kingman's
proposal, its language is very similar. It stated that men
"by nature" have "certain inalienable
rights," including "enjoying and defending life and
liberty" and "seeking and obtaining happiness and
safety." Applying that provision, the Ohio Court of
Appeals recognized it was broader than any provision in the
United States Constitution because it recognized natural
rights while the United States Constitution did not. "In
that sense, the Ohio Constitution confers greater rights than
are conferred by the United States Constitution, although
that Constitution has been construed very broadly so as to
maximize the nature of the individual rights guaranteed by
it." Preterm Cleveland v. Voinovich, 89 Ohio
App.3d 684, 691, 627 N.E.2d 570 (1993).
the broad scope of the Ohio natural rights provision, the
Ohio court determined "it would seem almost axiomatic
that the right of a woman to choose whether to bear a child
is a liberty within the constitutional protection,"
including the right to have an abortion. 89 Ohio App.3d at
Supreme Judicial Court of Massachusetts had arrived at the
same conclusion in 1981 after noting that its state
constitutional guarantees had "sometimes impelled us to
go further than the United States Supreme Court."
Moe v. Secretary of Administration & Finance,
382 Mass. 629, 649, 417 N.E.2d 387 (1981). The Massachusetts
Constitution, part 1, article I, recognizes individuals have
"certain natural, essential and unalienable rights;
among which may be reckoned the right of enjoying and
defending their lives and liberties; that of acquiring,
possessing and protecting property; in fine, that of seeking
and obtaining their safety and happiness." See also
Mass. Const. pt. 1, art. XII (due process provision).
As to a
"woman's right to make the abortion decision
privately," the Massachusetts court observed it was
"but one aspect of a far broader constitutional
guarantee" related to "'[t]he existence of a
"private realm of family life which the state cannot
enter, "'" the "'sanctity of
individual free choice and self-determination, '"
the "'strong interest in being free from
nonconsensual invasion of . . . bodily integrity, and a
constitutional right of privacy that may be asserted to
prevent unwanted infringements of bodily integrity.'
[Citations omitted.]" Moe, 382 Mass. at 648-49.
Likewise, the court concluded, "'decisions whether
to accomplish or to prevent conception are among the most
private and sensitive.'" 382 Mass. at 649 (quoting
Carey v. Population Services International, 431 U.S.
678, 685, 97 S.Ct. 2010, 52 L.Ed.2d 675 ).
little over a decade later, the highest court in West
Virginia, its Supreme Court of Appeals, relied in part on its
state constitution to invalidate an abortion funding
regulation in Women's Health Center v.
Panepinto, 191 W.Va. 436, 446 S.E.2d 658 (1993). The
relevant West Virginia constitutional provision declares that
the "'[g]overnment is instituted for the common
benefit'" of the people. 191 W.Va. at 441. Because
the West Virginia Constitution provides guarantees that are
not present in the United States Constitution, the court
deemed it appropriate to "interpret those guarantees
independent from federal precedent," and held that
denying funding for certain abortions violated the
constitutionally protected right to an abortion. 191 W.Va. at
woman's right to decide whether to continue a pregnancy
has also been recognized under the Mississippi Constitution,
which provides: "The enumeration of rights in this
constitution shall not be construed to deny and impair others
retained by, and inherent in, the people." Miss. Const.
art. 3, § 32. In Pro-Choice Mississippi v.
Fordice, 716 So.2d 645 (Miss. 1998), the Mississippi
Supreme Court rejected an argument that this provision could
not provide for a woman's right to decide whether to
continue a pregnancy because abortion was not mentioned in
the state constitution. "While we do not interpret our
Constitution as recognizing an explicit right to an abortion,
we believe that autonomous bodily integrity is protected
under the right to privacy as stated in [our previous
decision]. Protected within the right of autonomous bodily
integrity is an implicit right to have an abortion." 716
So.2d at 653. The Mississippi court observed that
"'no aspects of life [are] more personal and private
than those having to do with one's . . . reproductive
system.'" 716 So.2d at 653 (quoting Young v.
Jackson, 572 So.2d 378, 382 [Miss. 1990]).
the Iowa Supreme Court also has held that the Iowa
Constitution's guarantee that "'no person shall
be deprived of life, liberty, or property, without due
process of law, '" protects a woman's right to
decide whether to continue a pregnancy. Planned
Parenthood v. Reynolds ex rel., 915 N.W.2d 206, 232, 237
(Iowa 2018). The court wrote that "[a]utonomy and
dominion over one's body go to the very heart of what it
means to be free." 915 N.W.2d at 237. It characterized
the right to decide whether to continue a pregnancy as
"the right to shape, for oneself, without unwarranted
governmental intrusion, one's own identity, destiny, and
place in the world" and noted that "[n]othing could
be more fundamental to the notion of liberty." 915
N.W.2d at 237. It concluded that "under the Iowa
Constitution, . . . implicit in the concept of ordered
liberty is the ability to decide whether to continue or
terminate a pregnancy." 915 N.W.2d at 237.
natural right of personal autonomy recognized in these
states' constitutions allows individuals to control their
own bodies, to make health care decisions, and to make
decisions about whether to bear or beget a child. Some of
these courts chose the terminology of Roe, 410 U.S.
at 153, and spoke in terms of a state constitutional right to
"privacy." See Wharton, Roe at Thirty-Six and
Beyond: Enhancing Protection for Abortion Rights Through
State Constitutions, 15 Wm. & Mary J. Women & L.
469, 521-26 (2009) (discussing state abortion decisions
post-Roe). And this court has recognized privacy as
a natural right. See Kunz v. Allen, 102 Kan. 883,
884, 172 P. 532 (1918) ("'The right of privacy has
its foundation in the instincts of nature. It is recognized
intuitively, consciousness being the witness that can be
called to establish its existence. . . . A right of privacy
in matters purely private is therefore derived from natural
law.'"); see also Munsell v. Ideal Food
Stores, 208 Kan. 909, 922-23, 494 P.2d 1063 (1972);
Johnson v. Boeing Airplane Co., 175 Kan. 275, 262
P.2d 808 (1953). But we agree with the Ohio court that
concluded "it is ...