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Friday, April 26, 2019

The Kansas Abortion Opinion

Today the Kansas Supreme Court held that abortion is a fundamental right under its state constitution. The relevant provision is Section 1 of the Kansas Bill of Rights, which essentially uses the natural rights' language of the Virginia Declaration of Rights and the Declaration of Independence. In my book on the Bill of Rights, I discussed the fact that virtually all state constitutions contain a similar provision but that they are rarely used by state courts. The Kansas decision may signal that this is about to change.

Another observation from my book was that courts tend to lean more heavily on Bill-of-Rights rhetoric when the subject matter of a constitutional decision is controversial. The Kansas Supreme Court refers to its Bill of Rights many times (I lost count) to justify its conclusion that the right to have an abortion is, in part, a natural right that necessitates strict scrutiny for state regulation. We'll see how persuasive this move is when the inevitable effort to amend the Kansas Constitution to overrule the Court comes.

Posted by Gerard Magliocca on April 26, 2019 at 09:55 PM | Permalink


There are several surprising aspects to this opinion. First, the last time I looked at the state constitutional jurisprudence of the Kansas Supreme Court (okay, a long time ago), it was a court that, even in the heyday of independent state constitutional jurisprudence, was quite timid about interpreting the state constitution independently from the federal. It typically interpreted the two documents in lockstep, and was notably ambiguous when discussing which constitution it was analyzing in cases where parallel claims were made under both.

Second, the case is highly unusual in its careful and thorough mining of the legislative history of the state constitution. This hardly happens at all; one rarely hears about the framing histories of state constitutions.

Third, and most interesting to me, is how the court dismissed the early legislative record as not reflecting anything meaningful about public or legislative opinion in the state on the ground that control of the pre-statehood legislature had been forcibly seized by the Bloody Kansas invasion of pro-slavery Missourians. Fascinating move!

I wrote about some of these issues ages ago in The Failed Discourse of State Constitutionalism, 90 Mich. L. Rev. 761 (1992).

Posted by: Jim Gardner | Apr 27, 2019 5:05:55 PM

Interesting issue indeed. But worth to note, that the Supreme court of Kansas,goes further with the bill of rights and the Fourteenth amendment, and asserts that, I quote ( from the Syllabus of the opinion):

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 Constitution.


This can result in the Kansas Constitution protecting the rights of Kansans more robustly than would the United States Constitution.

End of quotation:

One may reach analysis of the opinion,and the opinion itself,here:



Posted by: El roam | Apr 27, 2019 7:47:43 AM

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