No. 15-114153-A
IN THE SUPREME COURT OF THE STATE OF KANSAS
Hodes & Nauser, MDs, PA,
Herbert C. Hodes, M.D., and Traci Lynn Nauser, M.D.,
Plaintiffs-Appellees,
v.
Derek Schmidt, in his official capacity as Attorney General
of the State of Kansas, and Stephen M. Howe, in his official capacity
as District Attorney for Johnson County,
Defendants-Appellants.
RESPONSE OF APPELLANTS TO BRIEF AMICI CURIAE
OF THE CONSTITUTIONAL ACCOUNTABILITY CENTER
AND THE AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF KANSAS
Appeal from the District Court of Shawnee County
Honorable Larry D. Hendricks, Judge
District Court Case No. 2015-CV-490
THOMPSON RAMSDELL QUALSETH & WARNER, P.A.
Stephen R. McAllister
Solicitor General of Kansas
333 W. 9th Street, Suite B
P.O. Box 1264
Lawrence, Kansas 66044
(785) 841-4554
(785) 841-4499 (fax)
[email protected]
Attorneys for Defendants-Appellants
Oral Argument: 45 minutes
#15845
TABLE OF CONTENTS
INTRODUCTION
1
In re Application of Kaul, 261 Kan. 755, 933 P.2d 717 (1997) .......................................... 2
Wright v. Noell, 16 Kan. 601 (1876) ................................................................................... 2
Gannon v. State, 298 Kan. 1107, 319 P.3d 1196 (2014) .................................................... 2
ARGUMENT
2
I. Section 1 of the Kansas Constitution’s Bill of Rights and the
Fourteenth Amendment to the United States Constitution are
different provisions with different text adopted at different times in
different circumstances and for different reasons. The plain text of
Section 1 of the Kansas Constitution’s Bill of Rights does not contain
a right to an abortion.
2
Kansas Const., Bill of Rights, sec. 1 ................................................................................... 3
Kansas Organic Act and Act for Admission into the Union, Kansas
Constitution .................................................................................................................. 3
American Declaration of Independence, para. 2 ................................................................. 3
Drapier, Proceedings and Debates of the Kansas Constitutional Convention
(1859) ....................................................................................................................... 3, 4
Schifanelli v. U.S. Gov’t, 1988 WL 138496 (4th Cir. Dec. 22, 1988) ................................ 4
Swepi, LP v. Mora Cty., N.M., 81 F. Supp. 3d 1075 (D.N.M. 2015) .................................. 4
Minyard v. Walsh, 2014 WL 1029835 (C.D. Cal. Mar. 17, 2014)...................................... 4
Black v. Simpson, 2008 WL 544458 (W.D. Ky. Feb. 27, 2008) ......................................... 4
Borzych v. Frank, 2006 WL 3254497 (W.D. Wis. Nov. 9, 2006) ...................................... 4
Coffey v. United States, 939 F. Supp. 185 (E.D.N.Y.1996) ................................................ 4
Dred Scott v. Sandford, 60 U.S. 393 (1856) ....................................................................... 4
Steven G. Calabresi & Sofia M. Vickery, On Liberty and the Fourteenth
Amendment: The Original Understanding of the Lockean Natural Rights
Guarantees, 93 Tex. L. Rev. 1299 (2015) .................................................................... 5
Schaake v. Dolley, 85 Kan. 598, 118 Pac. 80 (1911) .......................................................... 5
Rhodes v. MacDonald, 670 F. Supp. 2d 1363 (M.D. Ga. 2009), aff’d, 368
Fed. App’x 949 (11th Cir. 2010) .................................................................................. 5
Hodes & Nauser, MDs, P.A. v. Schmidt, 52 Kan. App. 2d 274, 368 P.3d 667
(2016) ....................................................................................................................... 5, 6
U.S. Const. amend XIV, sec. 1 ........................................................................................... 6
Farley v. Engelken, 241 Kan. 663, 740 P.2d 1058 (1987) .................................................. 6
Manzanares v. Bell, 214 Kan. 589, 522 P.2d 1281 (1974) ................................................. 6
i
Henry v. Bauder, 213 Kan. 751, 518 P.2d 362 (1974)........................................................ 6
Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, 408 P.2d 877 (1965) ........................... 7
State v. Spencer Gifts, LLC, __ Kan. __, 374 P.3d 680 (2016)........................................... 7
Cole v. Mayans, 276 Kan. 866, 80 P.3d 384 (2003) ........................................................... 8
II. There is nothing in the history of Section 1 that demonstrates
Kansans intended to create a state-law right to abortion in 1859, or at
any time.
9
Drapier, Proceedings and Debates of the Kansas Constitutional Convention
(1859) ........................................................................................................................... 9
Kan. Terr. Stat. 1855, ch. 48, § 10 ...................................................................................... 9
PDR Medical Dictionary, 3d Ed. 2006 ............................................................................... 9
Kan. Terr. Stat. 1855, ch. 48, § 39 .................................................................................... 10
Kan. Terr. Stat. 1855, ch. 48, § 9 ...................................................................................... 10
Kan. Terr. Stat. 1855, ch. 48, § 23 .................................................................................... 10
Kan. Terr. Stat. 1855, ch. 48, § 23 .................................................................................... 10
G.S. 1862, ch. 33, § 9........................................................................................................ 10
G.S. 1862, ch. 33, § 10...................................................................................................... 10
G.S. 1862, ch. 33, § 37...................................................................................................... 10
G.S. 1868, ch. 31, § 14...................................................................................................... 10
G.S. 1868, ch. 31, § 15...................................................................................................... 10
G.S. 1868, ch. 31, § 44...................................................................................................... 10
State v. Watson, 30 Kan. 281, 1 Pac. 770 (1883) .............................................................. 10
State v. Harris, 90 Kan. 807, 136 Pac. 264 (1913) ........................................................... 10
State v. Keester, 134 Kan. 64, P.2d 679 (1931) ................................................................ 10
State v. Brown, 171 Kan. 557, 236 P.2d 59 (1951)........................................................... 10
State v. Darling, 197 Kan. 471, 419 P.2d 836 (1966)....................................................... 10
State v. Darling, 208 Kan. 469, 493 P.2d 216 (1972)....................................................... 10
K.S.A. 1969 Supp. 21-3407; L. 1969, ch. 180, § 21-3407 ............................................... 10
Joy v. Brown, 173 Kan. 833, 252 P.2d 869 (1953) ..................................................... 11, 11
CONCLUSION
12
Brown v. Wichita State Univ., 219 Kan. 2, 547 P.2d 1015 (1976) ................................... 12
CERTIFICATE OF SERVICE
14
ii
INTRODUCTION
The brief amicus curiae filed by the American Civil Liberties Union Foundation of
Kansas and the Constitutional Accountability Center (collectively, “the ACLU”) is based on
a pervasive but erroneous presumption: The brief argues that because the framers of Section
1 of the Kansas Constitution’s Bill of Rights and the framers of the Fourteenth Amendment
were inspired (to differing degrees) by the American Declaration of Independence, this court
should now find that Section 1 of the Kansas Bill of Rights guarantees “at minimum” the
same substantive rights as the Fourteenth Amendment, including the right to an abortion.
This is simply untrue.
Section 1 of the Kansas Constitution and the Due Process Clause of the Fourteenth
Amendment are different provisions with different language, adopted at different times, in
different circumstances, by different people, and for different reasons. In particular, while
Section 1 is almost a direct excerpt from the Declaration, the Fourteenth Amendment is not.
Instead, the Fourteenth Amendment was adopted after the Civil War in part because the
aspirational language of the Declaration had no legal effect, and certainly did not give rise to
unenumerated, substantive rights guaranteed by “due process of law.” The Kansas
Constitution has no due process clause, no counterpart to this federal provision. Nor is there
any need to interpret Kansas law—regardless of its language or history—to duplicate
existing federal rights; at the heart of our federalist system is the notion that Kansans are
subject to the benefits and burdens of federal law regardless of whether those same benefits
and burdens are also adopted at the state or local level.
At bottom, the ACLU’s amicus brief ignores the long-standing directive from this
Court regarding constitutional interpretation: When construing a provision of the Kansas
1
Constitution, Kansas courts must look to the intention of the makers of the provision (the
Legislature or, in this case, the framers at the convention) and the intention of the adopters,
i.e., the people of Kansas at the relevant time. See In re Application of Kaul, 261 Kan. 755,
765, 933 P.2d 717 (1997) (In “ascertaining the meaning of a constitutional provision, the
primary duty of the courts is to look to the intention of the makers (the legislature) and the
adopters (the voters) of that provision.”). Applying these principles here, it is clear that
Section 1 was never intended to create a right to abortion under Kansas law. Neither the
language nor the history of the Kansas Constitution support importing federal substantive
due process rights in general, and abortion rights in particular, under Kansas law. Indeed, the
premise that there is a stand-alone, state right to an abortion found somewhere in Section 1
finds no support in the actual text of the Kansas Constitution—the source this court long has
recognized to be “the best and only safe rule for ascertaining the intention” of the people of
Kansas—or its history. Wright v. Noell, 16 Kan. 601, 607 (1876); Gannon v. State, 298 Kan.
1107, 1143, 319 P.3d 1196 (2014). This court must reaffirm these fundamental principles
and thus reverse the district court and Court of Appeals plurality’s opinions to the contrary.
ARGUMENT
I.
Section 1 of the Kansas Constitution’s Bill of Rights and the Fourteenth
Amendment to the United States Constitution are different provisions with
different text adopted at different times in different circumstances and for
different reasons. The plain text of Section 1 of the Kansas Constitution’s Bill
of Rights does not contain a right to an abortion.
The ACLU’s argument in its amicus brief is rooted entirely in its assertion that the
“text and history” of Section 1 of the Kansas Constitution Bill of Rights and the Fourteenth
Amendment to the United States Constitution both protect “substantive fundamental rights in
2
line with the Declaration of Independence.” ACLU Brief, at 5. While the ACLU recognizes
that there are marked differences between the texts of the Kansas and federal constitutions,
the amicus brief attempts to brush off the differing language with a blanket statement that “it
is a distinction without a difference.” ACLU Brief, at 4. A plain reading of Section 1 of the
Kansas Bill of Rights and the Fourteenth Amendment, however, underscores that these
fundamental and insurmountable textual and historical differences cannot be brushed aside.
Section 1 of the Kansas Constitution’s Bill of Rights states:
1. Equal rights. All men are possessed of equal and inalienable natural
rights, among which are life, liberty, and the pursuit of happiness.
Section 1 was part of the original Kansas Constitution—commonly called the Wyandotte (or
Wyandot) Constitution—which was drafted and ratified in 1859. Section 1 has remained
unaltered since that time. See Kansas Organic Act and Act for Admission into the Union,
Kansas Constitution. Obviously, Section 1 makes no reference to “abortion” or to “privacy.”
Nor does it use the phrase “due process of law.” Instead, Section 1 is a near direct quote from
the American Declaration of Independence:
We hold these truths to be self-evident, 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.
Declaration of Independence, para. 2.
Samuel Kingman, who proposed the language of Section 1, explained during the
Kansas Constitutional Convention that his aim was to pay homage to the Declaration itself.
Drapier, Proceedings and Debates of the Kansas Constitutional Convention, at 283 (1859)
(“I dislike to change any old truth from the forms of language ... and put into new and
doubtful phraseology; and our national Declaration of Independence is of this class of
3
truth.”). William Hutchinson, the chairman of the Preamble and Bill of Rights Committee at
the Kansas Constitutional Convention, similarly explained Section 1 was “but a declaration
of those natural rights of man that have been acknowledged from the foundation of this
government.” Drapier, at 282.
Courts across the country have recognized that “[t]he Declaration of Independence is
a statement of ideals, not law.” Schifanelli v. U.S. Gov’t, 1988 WL 138496, at *1 (4th Cir.
Dec. 22, 1988). See also Swepi, LP v. Mora Cty., N.M., 81 F. Supp. 3d 1075, 1172 (D.N.M.
2015) (same); Minyard v. Walsh, 2014 WL 1029835, at *4 (C.D. Cal. Mar. 17, 2014)
(“Claim 4’s assertion of a violation of Plaintiff’s rights to life, liberty and the pursuit of
happiness is not cognizable. Those principles, described in the Declaration of Independence,
do not guarantee enforceable rights.”); Black v. Simpson, 2008 WL 544458, at *2 (W.D. Ky.
Feb. 27, 2008) (“There is no private right of action to enforce the Declaration of
Independence.”); Borzych v. Frank, 2006 WL 3254497, at *8 (W.D. Wis. Nov. 9, 2006)
(“the Declaration of Independence is not binding law”); Coffey v. United States, 939 F. Supp.
185, 191 (E.D.N.Y.1996) (“While the Declaration of Independence states that all men are
endowed certain unalienable rights including ‘Life, Liberty and the pursuit of Happiness,’ it
does not grant rights that may be pursued through the judicial system.”). See also Dred Scott
v. Sandford, 60 U.S. 393, 407 (1856) (describing the Declaration’s description of unalienable
rights as merely “general words used in that memorable instrument” and holding that the
Declaration did not have a legally binding effect).
Thus, although a number states had adopted “inalienable rights” clauses into their
state constitutions by the close of the Civil War, the purpose of such clauses was to voice
support for equal rights, regardless of race or minority status—not to create repositories for
4
amorphous, yet-to-be-conceived substantive rights. See generally Steven G. Calabresi &
Sofia M. Vickery, On Liberty and the Fourteenth Amendment: The Original Understanding
of the Lockean Natural Rights Guarantees, 93 Tex. L. Rev. 1299, 1304 (2015) (noting that
northern states at the time of the Civil War adopted unalienable rights clauses to give support
for equal treatment of minorities and potentially to recognize rights that existed under
English common law, but otherwise “state courts generally deferred to the legislature”); see
also Schaake v. Dolley, 85 Kan. 598, 602, 118 Pac. 80 (1911) (quoting Cooley, Const. Lim.,
7th ed., at 245) (“Many things, indeed, which are contained in the bill of rights ... are not, and
from the very nature of the case can not be, so certain and definite in character as to form
rules for judicial decisions; and they are declared rather as guides to the legislative judgment
than as marking an absolute limitation of power.”).
It was recognition of this reality—that the Declaration of Independence’s aspirational
statements did not create legally enforceable rights—that in part led to the Fourteenth
Amendment, with its Due Process and Equal Protection Clauses. See Rhodes v. MacDonald,
670 F. Supp. 2d 1363, 1375 (M.D. Ga. 2009), aff’d, 368 Fed. App’x 949 (11th Cir. 2010)
(noting that the Fourteenth Amendment was “clearly designed to assure that the government
finally recognized the promise of the Declaration of Independence: that all men are created
equal”). The Fourteenth Amendment was drafted in 1866 and ratified in 1868—nine years
and a Civil War after Kansas adopted the Kansas Bill of Rights. Even putting aside the
obvious fact that “the framers of the Kansas Constitution could not have consciously
intended to create rights coextensive with the rights under the then-nonexistent Fourteenth
Amendment,” Hodes & Nauser, MDs, P.A. v. Schmidt, 52 Kan. App. 2d 274, 340, 368 P.3d
667 (2016) (Malone, C.J., dissenting), the language of the Fourteenth Amendment is
5
strikingly different from Section 1 of the Kansas Constitution. Section 1 of the Fourteenth
Amendment states:
No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State 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.
U.S. Const. amend XIV, sec. 1 (emphasis added).
Far from a “distinction without a difference,” the Fourteenth Amendment’s Due
Process Clause created an actionable federal right to due process of law. See 52 Kan. App.
2d at 339). Unlike Section 1 of the Kansas Bill of Rights, the Fourteenth Amendment thus
includes a specific prohibition against unreasonable governmental interference with “life,
liberty, or property.”
The ACLU’s amicus brief is based on a logical fallacy; the mere fact that Section 1 of
the Kansas Constitution and the Due Process Clause of the Fourteenth Amendment both
looked to some extent to the Declaration of Independence for inspiration does not mean that
those two charters must be interpreted in lock step with one another, or that they are legally
coextensive. Neither the language of those provisions nor their histories suggest such a
reading. These are different texts adopted at different times in different circumstances by
different groups of people for different reasons.
It is true, as the ACLU notes, that a few Kansas cases decided in the latter half of the
20th century employ sloppy language arguably equating due process and equal protection
rights as interchangeable protections under the Kansas Constitution. See, e.g., Farley v.
Engelken, 241 Kan. 663, 667, 740 P.2d 1058 (1987); Manzanares v. Bell, 214 Kan. 589, 602,
610, 522 P.2d 1281 (1974); Henry v. Bauder, 213 Kan. 751, 752-53, 518 P.2d 362 (1974);
6
Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, 759-60, 408 P.2d 877 (1965). But, even
so, none of these cases found Section 1 to be a repository for unlisted or yet-to-bedetermined substantive rights. Instead, all of these cases involved questions of equal
protection—a guarantee fully supported by the text and the history of Section 1.1 Imprecise
dicta in judicial decisions cannot overcome the constitutional text and the intent of the
Kansans who designed and adopted the constitutional provision at issue here. Cf. State v.
Spencer Gifts, LLC, __ Kan. __, Syl. ¶ 2, 374 P.3d 680 (2016) (“The plain language selected
by the legislature … trumps both judicial decisions and the policies advocated by the
parties.”).
The Kansas Constitution’s Bill of Rights itself illustrates that Kansans did not expect
Section 1 to serve as a source of unenumerated substantive rights. Instead, at the same time
the people adopted Section 1, they adopted 18 specific constitutional protections ranging
from limitations on political power (Section 2) to religious freedom (Section 7), from an
individual right to bear arms (Section 4) to a protection against debtors’ prisons (Section 16),
from freedom of the press (Section 11) to outlawing slavery (Section 6). Similarly, in the
years since the United States Supreme Court decided Roe v. Wade, Kansans have amended
the Kansas Constitution many times, including to add provisions relating to (for example)
lotteries, the sale of alcohol, bingo, labor unions, raffles, and taxation of personal watercraft.
Few, if any, of these amendments would have been necessary if Section 1 simply could be
1
Section 1 of the Kansas Bill of Rights refers to “equal rights;” thus, it is no surprise that courts
have often cited Section 1 as acting as the Kansas equivalent to the Fourteenth Amendment’s
Equal Protection Clause. See Alpha Med. Clinic v. Anderson, 280 Kan. 903, 920, 128 P.3d 364
(2006). But the language of Section 1 does not point Kansas courts inexorably toward adopting
federal “substantive due process” principles. In fact, the opposite is true because the Fourteenth
Amendment contains a due process clause, while the Kansas Constitution does not, neither in
Section 1 nor anywhere else.
7
interpreted as broadly as the ACLU seeks to have it applied here to recognize new
substantive rights. Kansans, however, did not delegate the determination of necessity for
each and every possible Kansas constitutional protection to the courts. Instead, throughout
our history Kansans regularly have utilized the amendment process set forth in Article XIV
of the state constitution to recognize new rights and provide new protections to Kansans.
Thus, despite amending the state constitution on numerous occasions for various
reasons, Kansans have never made any effort to amend the Kansas Constitution to include a
right to abortion. Accord Cole v. Mayans, 276 Kan. 866, 878, 80 P.3d 384 (2003) (applying
the maxim expression unius est exclusion alterius, i.e., the inclusion of one thing implies the
exclusion of another). Moreover, such an action was not necessary. Kansans enjoy the full
protections of the federal Constitution; there is no need to force an interpretation of Section 1
that blindly duplicates federal rights despite the text and history of that document and the
will of the Kansans who adopted it.
The ACLU’s argument that the Court should hijack the Kansas constitutional
amendment process in order to establish a right to abortion—and in particular, a fundamental
right even more expansive than the federal abortion right—is contrary to the plain text of the
Kansas Constitution and its history, as well as this Court’s longstanding case law regarding
constitutional interpretation. Such a step is neither warranted nor necessary. The decisions of
the district court and the plurality of the Court of Appeals finding such a right must be
reversed.
8
II.
There is nothing in the history of Section 1 that demonstrates Kansans
intended to create a state-law right to abortion in 1859, or at any time.
The ACLU claims that the framers of the Kansas Constitution intended “to ensure
that the ‘widest liberty is enjoyed,’” and that they thus apparently intended to protect a right
to an abortion. ACLU Brief, at 14-15. Again, history shows that the opposite is true. A
review of the debates of the Kansas Constitutional Convention demonstrates that the framers
of Section 1 had freedom from slavery in mind when they accepted Samuel Kingman’s
proposal to incorporate language from the Declaration of Independence into Section 1—not
substantive rights in general, or the right to an abortion in particular. In fact, at no point was
abortion so much as mentioned during the discussion of and debate on Section 1. Drapier,
Proceedings and Debates of the Kansas Constitutional Convention, 271-86 (1859).
Kansas history is clear that the people of Kansas did not intend for or understand
Section 1 to create any kind of protection for obtaining an abortion: abortion was illegal in
Kansas in 1859. After Kansas became a U.S. territory in 1854, the Territorial Legislature
enacted statutes making abortion illegal in the state:
Every person who shall administer to any woman, pregnant with a quick child,
any medicine, drug, or substance whatsoever, or shall use or employ any
instrument, or other means, with intent thereby to destroy such child, unless
the same shall have been necessary to preserve the life of such mother, or shall
have been advised by a physician to be necessary for that purpose, shall be
deemed guilty of manslaughter in the second degree.
Kan. Terr. Stat. 1855, ch. 48, § 10. (A “quick child” is one whose fetal movements are
recognizable, usually appearing at 16-20 weeks gestation. PDR Medical Dictionary, 3d Ed.
2006.)
Every physician or other person who shall wilfully administer to any pregnant
woman any medicine, drug or substance whatsoever, or shall use or employ
any instrument or means whatsoever, with intent thereby to procure abortion
9
or the miscarriage of any such woman, unless the same shall have been
necessary to preserve the life of such woman, or shall have been advised by a
physician to be necessary for that purpose, shall, upon conviction, be adjudged
guilty of a misdemeanor, and punished by imprisonment in a county jail not
exceeding one year, or by fine not exceeding five hundred dollars, or by both
such fine and imprisonment.
Kan. Terr. Stat. 1855, ch. 48, § 39.
The wilful killing of any unborn quick child, by any injury to the mother of
such child, which would be murder if it resulted in the death of such mother,
shall be deemed manslaughter in the first degree.
Kan. Terr. Stat. 1855, ch. 48, § 9. The punishment for manslaughter in the second degree was
confinement and hard labor for not less than three years, nor more than five years. Kan. Terr.
Stat. 1855, ch. 48, § 23. The punishment for manslaughter in the first degree was
“confinement and hard labor” of not less than five years. Kan. Terr. Stat. 1855, ch. 48, § 23.
After Kansas became a state in 1861, the same criminal abortion statutes remained in
effect, see G.S. 1862, ch. 33, §§ 9-10, 37, and were controlling Kansas law when the
Fourteenth Amendment to the United States Constitution was ratified in 1868. See G.S.
1868, ch. 31, §§ 14-15, 44. The earliest reported case involving an appeal from a conviction
for performing an abortion is State v. Watson, 30 Kan. 281, 1 Pac. 770 (1883)—just 15 years
after the ratification of the Fourteenth Amendment. Kansas continued to prosecute people
who performed abortions until the Supreme Court’s decision in Roe v. Wade in 1973
preempted these longstanding Kansas laws. See, e.g., State v. Harris, 90 Kan. 807, 136 Pac.
264 (1913); State v. Keester, 134 Kan. 64, P.2d 679 (1931); State v. Brown, 171 Kan. 557,
236 P.2d 59 (1951); State v. Darling, 197 Kan. 471, 419 P.2d 836 (1966); and State v.
Darling, 208 Kan. 469, 493 P.2d 216 (1972) (all involving appeals from convictions for
performing abortions). Indeed, at the time Roe was decided, criminal abortion was defined as
a class-D felony in Kansas. See K.S.A. 1969 Supp. 21-3407; L. 1969, ch. 180, § 21-3407.
10
The court discussed the Kansas Legislature’s purpose in adopting these criminal
provisions in Joy v. Brown, 173 Kan. 833, 252 P.2d 869 (1953). There, the plaintiff brought a
wrongful death action against the defendant for negligence in performing an abortion that
caused the death of the mother. The defendant abortion provider argued there was no cause
of action for wrongful death because the mother consented to the abortion. The court found
that a cause of action existed. In particular, the court noted “that no person may lawfully and
validly consent to any act the very purpose of which is to destroy human life.” 173 Kan. at
839-40. The court also took “brief note of our crimes act.” 173 Kan. at 838. The court recited
the criminal abortion statutes in effect at the time, which mirrored the 1855 territorial statutes
and noted that those statutes were adopted “for the purpose of protecting the life … of the
unborn child”:
On their face, the above statutes do not condemn the woman nor does any
other statute make her an accomplice. She has no criminal liability unless it be
as an accessory under G.S.1949, 21-105 or 21-106, which we need not here
determine. It need not be elaborated that the above statutes are for the
purpose of protecting the life not only of the unborn child, but that of the
mother, and that the state has a vital interest therein.
173 Kan. at 838-39 (Emphasis added).
At the time the Kansas Constitution—including Section 1 of the Bill of Rights—was
drafted and ratified, abortion was illegal in Kansas. Almost 100 years later, this Court
recognized the continuing validity of such laws and applied them, laws which this Court
observed were on the Kansas statute books “for the purpose of protecting the life … of the
unborn child.” Joy, 173 Kan. at 839. It is unfathomable that in 1859, the framers of the
Kansas Constitution and the voters intended for Section 1 of the Kansas Bill of Rights to
include a right to an abortion—that is, a right to engage in then-criminal activity and the
exact opposite of protecting the life of an unborn child.
11
CONCLUSION
The Kansas Constitution is not merely a mirror that duplicates rights already
recognized under federal law. The state constitution—the work of the people of Kansas—
provides specific rights and protections Kansans have deemed appropriate throughout our
history, from the basic structure of state government to substantive issues like taxation,
education, and suffrage. Sometimes those rights may exceed rights recognized under federal
law; other times Kansans have not chosen to recognize (under Kansas law) rights that federal
law recognizes. Either way, those are choices for the people of Kansas to make. Our history
demonstrates that when the people of Kansas have wished to add additional constitutional
protections, they have not hesitated to do so through the state constitution’s amendment
process.
Before this case, no Kansas court had ever found a right to abortion under the Kansas
Constitution. The language and history of the state constitution provide no support for such a
right. The people of Kansas rely on the Kansas Supreme Court—as the “guardian of the
[people’s] Constitution”—to give effect to the will of Kansans, as evidenced by the language
and history of the Kansas Constitution. Brown v. Wichita State Univ., 219 Kan. 2, 13, 547
P.2d 1015 (1976). Here, the lower courts failed to fulfill that obligation. Put simply, the
Kansas Constitution does not provide a right to abortion. To the contrary, the district court
and the Court of Appeals “created” such a right.
This court should hold—based on the language and history of the Kansas
Constitution—that there is no state-law right to abortion in Kansas. The decisions of the
district court and the plurality of the Court of Appeals finding such a right must be reversed.
12
Respectfully submitted,
THOMPSON RAMSDELL QUALSETH & WARNER, P.A.
/s/ Shon D. Qualseth
Stephen R. McAllister
Solicitor General of Kansas
Shon D. Qualseth
Sarah E. Warner
333 West 9th Street – Suite B
P.O. Box 1264
Lawrence, Kansas 66044-2803
Phone: (785) 841-4554
Fax: (785) 841-4499
[email protected]
[email protected]
[email protected]
#15845
#18369
#22788
OFFICE OF KANSAS ATTORNEY GENERAL
DEREK SCHMIDT
/s/ Jeffrey A. Chanay
Jeffrey A. Chanay
#12056
Chief Deputy Attorney General
Dennis D. Depew
#11605
Deputy Attorney General, Civil Litigation Division
Memorial Building 3rd Floor
120 SW Tenth Avenue
Topeka, KS 66612-1597
Phone: (785) 368-8435
Fax: (785) 291-3767
[email protected]
[email protected]
Attorneys for Defendants-Appellants
13
CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing were sent by electronic mail, according to
previous agreement of the parties, on October 18, 2016, addressed to:
Robert V. Eye
Brett A. Jarmer
Robert V. Eye Law Office, LLC
123 SE 6th Avenue, Suite 200
Topeka, KS 66603
[email protected]
[email protected]
Lee Thompson
Thompson Law Firm, LLC
106 E. 2nd Street
Wichita, KS 67202
[email protected]
Janet Crepps
Genevieve Scott
Center for Reproductive Rights
199 Water Street, 22nd Floor
New York, NY 10038
[email protected]
[email protected]
Teresa A. Woody
The Woody Law Firm PC
1621 Baltimore Avenue
Kansas City, MO 64108
[email protected]
Erin Thompson
Foland, Wickens, Eisfelder, Roper &
Hofer
1200 Main St.
Kansas City, KS 64105
[email protected]
Stephen Douglas Bonney
ACLU Foundation of Kansas
6701 W. 64th St., Suite 210
Overland Park, KS 66202
[email protected]
Brianne J. Gorod
David H. Gans
Constitutional Accountability Center
1200 18th St., NW, Ste. 501
Washington, DC 20036
[email protected]
[email protected]
/s/ Shon D. Qualseth
Shon D. Qualseth
14