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Thoughtful opinion goes back to state’s foundation, says KU Law Professor

The Kansas Supreme Court held on Friday that the right to personal autonomy they found while interpreting Section 1 of the Kansas Constitution includes a right to abortion, specifically remanding a case to district court challenging a 2015 Kansas law that would have banned dismemberment abortions.

“In my opinion, this was a very thoughtful legal opinion,” said Lumen ‘Lou’ Mulligan, Director of the Shook, Hardy and Bacon Center for Excellence in Advocacy at the University of Kansas. “It was heavily researched. Heavily researched also in the history of Kansas law and the Kansas Constitution. These aren’t resources that are just laying around. They didn’t go to Google. With three opinions that are responding to each other, it’s not surprising that it took awhile to put this together.”

Pages of the majority’s opinion are devoted to how the Kansas Constitution came to include Section 1 and the resulting debates over its inclusion at the Wyandotte Convention along with the foundation of the specific wording in the United States Declaration of Independence and the writings of John Locke. The court described the abortion right as fundamental, but not absolute.

“Constitutional rights, whether they’re under the federal Constitution or the state Constitution are never absolute, actually,” said Mulligan. “They’re always subject to a countervailing weight. That’s really where the majority and then the concurring opinion and the dissenting opinion differ. All three opinions agree that Section 1 creates rights for individuals. It’s the question of how much does the countervailing collective rights matter?”

Kansas is not the first state to interpret language like its Section 1 has in the way that it did.

“At least seventeen different states have a similar quotation from the Declaration of Independence as does the Kansas Constitution,” said Mulligan. “Justice Biles, in his concurring opinion, looks to those seventeen different states and found that sixteen of those seventeen have already found that the Declaration of Independence language secures some type of abortion rights.”

It’s important to note, though, that the justices who voted in support of the remand, save Judge Biles, were relying on precedent at least as old as the drafting of the Wyandotte Constitution within their argumentative foundation. They weren’t using the other states to primarily buttress their argument, but rather the debates of Kansans.

It is likely, given the opinions expressed by legislative leadership, that a further debate among Kansans will be forthcoming, this time over a potential amendment to the Constitution and what it might contain. The legislature will reconvene next week.

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