The Kansas Supreme Court got it right.
In a landmark case — one judge called it “the most significant and far-reaching decision this court has ever made” — a clear majority said Friday that the Kansas Constitution fundamentally protects the right to an abortion.
“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,” the majority said.
The ruling will not end the political argument over abortion, which rages on in Topeka, Jefferson City and across the country. In fact, because of how the court reached its finding, there are likely to be additional lawsuits and legislative debates.
But the court’s language sends a powerful message to lawmakers: You cannot completely outlaw abortion without violating the guaranteed personal rights of Kansas women, even if the U.S. Supreme Court eventually overturns Roe v. Wade.
Let’s be absolutely clear: The Kansas court did not legalize all abortions Friday. The right to an abortion is fundamental, it said, but not absolute.
The Legislature can restrict abortions, but only with laws that can meet “strict scrutiny” — the state must show the need for a law and prove it’s precisely written to avoid trampling on individual rights. The judges sent the case back to the trial court to determine if a 2015 law meets that standard.
It’s a pretty high bar, but it is reachable. That’s why there will be more court cases and legislation to find out where the line is.
In his rambling, often inconsistent dissent, Kansas Supreme Court Judge Caleb Stegall firmly rejected that standard. He’d set the bar much lower, allowing lawmakers to restrict abortion rights if they merely had a rational reason to do so.
That’s the wrong approach. A flimsy “rational basis” test would give lawmakers a blank check to usurp fundamental rights, based on the whims of 165 representatives and senators, as well as one governor.
Putting fundamental rights up for a vote is a recipe for legislative tyranny. Lawmakers legalized slavery, denied women equality, enabled the incarceration of Japanese-Americans, promoted Jim Crow, allowed substandard schools and prohibited gay marriage. All were once considered “rational” decisions, even by some courts.
To be sure, all individual rights — free speech, gun rights, voting rights, abortion — are occasionally restricted. To limit those fundamental rights, though, you need to have a really good reason and prove it’s the least restrictive way to do it. That’s precisely what the Kansas Supreme Court said Friday.
Predictably, many conservatives reacted with outrage after the decision was published. They promised to offer a constitutional amendment next week that would put abortion rights on a statewide ballot.
“Nowhere in our state constitution is there a right to the violent act of abortion,” said Senate President Susan Wagle. “As Kansans, we understand that life is sacred, beginning at conception, and we must always stand and defend the most vulnerable among us, the unborn.”
Putting an anti-abortion amendment on the ballot will take a two-thirds vote in both houses. Expanding Medicaid, which would also protect the most vulnerable among us, would take a simple majority in just the state Senate. Perhaps Wagle and her colleagues could spend their time on that.
It took the Supreme Court two years to reach a decision in this case because abortion and civil rights are complex and difficult issues for everyone, including us. We support the fundamental right to an abortion, but we do not support abortion on demand. Some narrow abortion restrictions, particularly late in a pregnancy, are constitutional. Other restrictions, early in a pregnancy, are not.
Most Americans agree with this view, and much of the world has adopted it. The Kansas Supreme Court endorsed that Friday, and it was right to do so.