Kansas Attorney General Derek Schmidt (R) on Wednesday apologized for citing the Supreme Court's Dred Scott decision in a brief defending a state antiabortion-rights law (SB 95), the Wichita Eagle reports (Lowry, Wichita Eagle, 10/19).
Law details
The law, drafted by the National Right to Life Committee, would ban a medically proven method of abortion care. It includes exceptions only if continuing the pregnancy would result in a woman's death or the irreversible physical impairment of a major bodily function. The law does not include exceptions for cases of incest or rape, nor for a woman who is experiencing mental health issues.
Legal background
The Center for Reproductive Rights (CRR) filed a lawsuit against the law in Shawnee County District Court on behalf of Herbert Hodes and Traci Nauser, OB-GYNs at the Center for Women's Health in Overland Park, Kansas. The providers contended that, under the law, doctors would be forced to change their manner of providing abortion care, increasing the complexity of abortions and the health risks to women. Further, they said Supreme Court precedent prohibits states from banning this medically proven procedure.
In June 2015, Shawnee County District Court Judge Larry Hendricks issued a temporary injunction on the law, which had been scheduled to take effect in July 2015. He said while alternative abortion methods would remain legal under the law, those "alternatives do not appear to be medically necessary or reasonable." He noted that the state constitution protects a woman's right to abortion at least to the extent that the U.S. Constitution does.
Schmidt appealed Hendricks' decision, and both parties in the lawsuit asked the Kansas Supreme Court to take over the case. The state Supreme Court in September 2015 declined in a 4-3 vote.
In January, Kansas Court of Appeals heard an appeal with the full panel of 14 judges and ruled 7-7 on the case. The split decision upheld the lower court's temporary injunction, as well as Hendricks' statements that the Kansas Constitution's language on personal liberties protects women's right to abortion care.
The state appealed the ruling in February. Later that month, CRR filed a brief asking the Kansas Supreme Court to review and uphold the lower court decision that blocked the law (Women's Health Policy Report, 4/13). The American Civil Liberties Union later filed an amicus brief in the lawsuit, contending that the equal rights provision in the state's Constitution should be interpreted in the same manner as the U.S. Constitution's 14th Amendment. According to the Eagle, the Supreme Court in its Roe v. Wade decision cited the 14th Amendment as the basis for the constitutional right to abortion care (Wichita Eagle, 10/19).
In April, the state Supreme Court agreed to review the state law (Women's Health Policy Report, 4/13).
Latest developments
Schmidt's office submitted a filing in the lawsuit to the state Supreme Court on Tuesday.
In the brief, state attorneys disputed ACLU's argument, claiming that the state Constitution's provision on equal rights was inspired by the Declaration of Independence, not the U.S. Constitution. They claimed that as a result, the state Constitution, like the Declaration of Independence, should be interpreted as a statement of ideals rather than as a document of law.
According to the Eagle, the state's attorneys cited seven lawsuits in which courts ruled that the Declaration of Independence did not have any legal effect. One of those cases was the Supreme Court's 1857 Dred Scott decision, which held that a black person whose ancestors had been enslaved had no legal standing because he or she could not be a U.S. citizen. The decision is widely regarded as one of the Supreme Court's worst rulings and helped spur the start of the Civil War, the Eagle reports.
In the brief, the state's attorneys said that decision showed that "the Declaration's description of unalienable rights as merely 'general words used in that memorable instrument'" and "that the Declaration did not have a legally binding effect." The state claimed that though "a number of 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 amorphous, yet-to-be-conceived substantive rights."
According to the Eagle, the brief's inclusion of the Dred Scott decision drew widespread criticism from advocates and legal experts.
State withdraws brief, but plans to continue appeal
On Wednesday, Schmidt apologized for the inclusion of the Dred Scott ruling and withdrew the brief.
Calling the inclusion "obviously inappropriate," Schmidt said, "Yesterday's reference to Dred Scott in a State's response brief does not accurately reflect the State's position, is not necessary for the State's legal argument, and should not have been made." He added that the state would continue to contest the argument that "the Kansas Constitution establishes a state-level right to abortion."
Separately, Doug Bonney, chief counsel for the ACLU of Kansas, said the decision to reply to the amicus brief and to cite the Dred Scott ruling were unusual.
Bonney also contested the state attorneys' claims in the brief, noting that Kansas' decision to include the equal rights provision in the state Constitution made the language legally binding, no matter whether it was inspired by the Declaration of Independence. To argue that the equal rights provision in the Kansas Constitution "has no legal effect, I think, is contrary to Kansas law and Kansas interpretations of the constitution that have been long-standing," Bonney said (Wichita Eagle, 10/19).
