A new lawsuit filed by abortion activists in Kansas gives us a good look at the multi-layered complexity of abortion law after the Dobbs decision.

After Dobbs and the elimination of any special federal constitutional right to an abortion, defending unborn life became a state-by-state battle. Every state is different—they have their own constitutions, statutory laws, and histories of regulation. State courts have become the battle-ground—and many of them, like their state legislatures, are elected by the voters.

Kansas will thus give us insight into how every abortion case will play out in every state where it is litigated.

What’s Going on in Kansas

Kansas has a 24-hour waiting period before having an abortion. It also has an informed consent law (“The Women’s Right to Know Law”) that was originally passed in 1997 and which requires extensive disclosures by the abortion doctor. Those disclosures include information about prenatal development, abortion procedures and their risks, alternatives to abortion, the option to have a sonogram and to listen to the baby’s heartbeat, and a clear statement that abortion ends a human life. There are also detailed requirements that abortion clinics post signs and provide written materials to a woman considering an abortion.

Earlier this year, Kansas added a requirement that abortion doctors inform their patients of the possibility of reversing a chemical abortion. This can be done after the mother takes the first of the two abortion drugs. It has been studied for years and has proven successful in reversing the abortion in two-thirds of the cases.

Abortion activists brought this latest suit to invalidate all of the informed consent requirements. In other words, they want to keep mothers ignorant of the stages of their baby’s development, to refuse them the opportunity to see the baby and hear their heart, and to eliminate the possibility that she may go home and change her mind. They are especially bitter toward the abortion reversal, perhaps because chemical abortions are their “magic bullet” and make up over 50 percent of all abortions. Anything that would cut into that market is obviously a threat to their business plan.

The Battle over Constitutional Interpretation

If this lawsuit had been brought before the Dobbs decision based on the federal constitution, it certainly would have lost. The U.S. Supreme Court and lower courts repeatedly upheld informed consent laws and waiting periods because they did not impose an “undue burden” on abortion. In fact, the Court upheld both provisions in the Pennsylvania law that was the subject of Planned Parenthood v. Casey.

But now that abortion activists can’t rely on a made-up abortion right in federal constitutional law, they have to rely on state constitutions. That means that state courts will have to do some hard work.

This is where differing methods of constitutional interpretation will come into conflict in every single state.

Under the approach called “originalism,” judges will have to look at the text, history, and tradition of their constitutions, and then decide what—if any—right to an abortion they can find. This is the predominant approach of conservative judges and was the underpinning of the Dobbs decision. I find it impossible to believe that any originalist judge would find a right to abortion in virtually any state constitution.

The alternative approach is generally called “living constitutionalism.” Here, judges view the constitution as a dynamic text, the meaning of which changes over time to reflect changes in social attitudes and values. This is enormously liberating for judges, because it frees them to make up the constitution as they go along based on their own political views or “judicial philosophy”—including a right to kill an unborn baby. That’s how we got Roe v. Wade in the first place.

The choice of how to interpret a constitution regarding abortion is thus all but determinative of the result.

Kansas as a Case Study

The way this dispute over constitutional interpretation has played out, and will continue to play out, can be seen in what has happened so far in Kansas.

The text of the Kansas Constitution is perfectly clear. In the first section of the Bill of Rights, it states: “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.” That language should sound familiar—it was deliberately chosen to echo the Declaration of Independence.

An originalist judge would then look to history. The Kansas Constitution was adopted in 1859, in the midst of a furious controversy over whether the state would enter the Union as a slave or free state. That dispute was so hot that a short but brutal civil war was fought—the infamous “Bleeding Kansas” conflict that got John Brown started in his violent abolitionism. A pro-slavery constitution (called the “Lecompton Constitution”) was first approved by a rigged election, but later rejected by voters. The final document, the anti-slavery “Wyandotte Constitution,” was then adopted in 1859.

This history is vitally important to understand what the inalienable rights section of the Kansas Constitution means. Remember, at the time of both the Declaration of Independence and the Wyandotte Constitution, abortion was a crime under the common law. Nobody in America in 1776 thought that there was any right to an abortion. The laws of the Kansas territory in 1859 criminalized abortion at all stages of pregnancy, and those laws were repeated in the new state’s statutes.

It is absurd to think that anyone at the time thought that there was a constitutional right to abortion in Kansas. It is also absurd to think that the men who adopted a basic law that forbade slavery would have imagined excluding an entire class of people from the protection of the law.

After that time, laws banning abortion remained on the books up until Roe v. Wade. The Kansas Supreme Court repeatedly upheld convictions for violations of those laws, and never gave the slightest hint that there was a constitutional problem.

So from an originalist perspective, it is clear that there is no right to abortion guaranteed under the Kansas Constitution, and this lawsuit would lose.

But that’s not what happened in 2019, when the Kansas Supreme Court looked at the issue in the case of Hodes & Nauser v. Schmidt. They chose the other approach—the “living constitution”—and found that the inalienable rights section of the Bill of Rights established a “fundamental right” to abortion based on the right to control one’s personal autonomy, bodily integrity, and self-determination.

To get there, the court extensively discussed how that language was drafted, what it meant in the Declaration of Independence, and Supreme Court jurisprudence on “unenumerated rights” (i.e., rights not contained in the constitutional text). But the court’s treatment of history was bizarre. They shockingly dismissed the statutes against abortion from the 1850s as being essentially irrelevant to the question and based on primitive misogynistic attitudes of all-male legislators.

This ahistorical nonsense was eviscerated by the lone dissenting judge. But the majority rules, and abortion in Kansas was thus put on the same constitutional level as the right to free speech, religion, voting, etc.

The terrible irony in the court’s decision was that in searching through the clouds for unenumerated rights, they overlooked one explicitly identified right in the text itself—life—and thereby cast an entire class of people outside the protection of the law. They did this by saying blandly that “this court has held that ‘the Kansas Bill of Rights protects the basic liberties which insure to each person at birth’” (emphasis added).

How strange it is to think that a constitution adopted just two years after the infamous Dred Scott decision would one day be interpreted to mean that preborn children have no rights that born people are bound to respect.

Unfortunately, in the immediate aftermath of the Dobbs decision, Kansas voters rejected a constitutional amendment that would have overturned that terrible decision. That was likely due to the general public misunderstanding of what Dobbs really meant. But there it is.

It’s also worth noting that members of the Kansas Supreme Court are appointed by the governor but are subject to a retention election in the next general election. They serve a six-year term and are then subject to another retention election. Several of the judges in the majority of Hodes & Nauser v. Schmidt, and the one dissenting judge, were all retained in elections after that decision.

What this Means for the Kansas Lawsuit and Beyond

The result is that in Kansas, one of the most conservative and religious states in the nation, abortion is given such a high degree of protection that it may be virtually impossible to significantly limit it. That means that this lawsuit is a serious threat to the current Kansas laws.

As noted above, waiting periods and informed consent laws were generally upheld under the “undue burden” standard that prevailed before Dobbs. But thanks to Hodes & Nauser v. Schmidt, those laws will now be assessed under the tougher “strict scrutiny” standard. That means the state will have to show that there is a “compelling” state interest, and that the law is narrowly tailored to serve that need. This test has been called “strict in name but fatal in fact” because few laws can survive it.

In the Hodes & Nauser v. Schmidt case itself, the Kansas Supreme Court enjoined a partial birth abortion law. In fact, they said that the law wouldn’t even withstand the lower “undue burden” standard. So there are serious reasons to be pessimistic about how the Kansas Supreme Court will rule on this lawsuit.

As a result, we can use this case as a template for what is to come in future state constitutional litigation. First, the courts will have to decide if there is a constitutional right to abortion. The interpretive approach—originalism v. living constitutionalism—will be critical to the outcome. Then, the court will have to decide what standard to apply to the law in question.

This will all be done in the context of the fraught politics of abortion—with elected judgeships in many states, the possibility of constitutional amendments coming on the ballot, further legislation being passed, and cases being decided around the country. Many layers of complexity, indeed.