TOPEKA The Kansas Supreme Court dove into some of the most fundamental questions about liberty, freedom and the meaning of the state constitution Thursday during arguments in a case that could decide whether women in Kansas have a fundamental right under state law to have an abortion, regardless of whether the U.S. Supreme Court decides in the future to overturn the landmark abortion case Roe vs. Wade.
On its surface, the case involves a 2015 law that nearly bans the use of a procedure commonly used in second trimester abortions called dilation and evacuation, or D & E, which abortion opponents defined in the law as "dismemberment abortion."
But the case also represents a new strategy being employed by abortion rights advocates of bringing legal challenges in state courts instead of federal courts because they fear that the U.S. Supreme Court, which has grown more conservative in recent years, may soon overturn Roe vs. Wade, the 1973 case that first legalized abortion nationwide.
Those concerns have been heightened since the election of President Donald Trump, who has already put forth one court nomination and could be in a position during his first term to replace two more justices who are over the age of 80.
Kansas Supreme Court Justice Dan Biles got directly to that point Thursday in questioning Janet Crepps, an attorney for the Center for Reproductive Rights, which is representing the Overland Park clinic challenging the new law.
"Can we agree that plaintiffs made a strategic decision to bring this case only under the Kansas Constitution since federal case law, at least at this point in time, is a pretty much unknown factor?" Biles asked.
"Yes, your honor," Crepps said. "The physicians exercised their rights to have this court look at the scope of protection under the Kansas Constitution, and as this court noted in (an earlier) case, federal constitutional protection seems to ebb and flow with the political tide."
But Kansas Solicitor General Stephen McAllister, a University of Kansas law professor, argued there was nothing in the text of the constitution, nor anything in the history of the state of Kansas, to suggest that the original framers or the people generally ever recognized a right to abortion.
"The policy preferences of the people of Kansas on this question have been clear since territorial days, and they have been consistent," he said. "Kansas law in 1855 prohibited abortion. Kansas law today declares a policy of not any right to abortion."
McAllister's argument prompted a nearly hourlong question-and-answer exchange as the justices tried to probe into exactly what the framers of the Kansas Constitution meant when they wrote the document in 1859, and whether the meaning of that document has changed over time.
Justice Carol Beier, for example, noted that Section 1 of the Kansas Bill of Rights says, "All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness." She asked whether that meant only men had such rights, and not women.
McAllister said he would not go that far, but he said judges should be careful about trying to adapt the constitution to changing times.
"Because the risk is, if you just say, 'Well the constitution changes with the times,' then it's the judges who ultimately decide what the times require," he said. "I think first and foremost it should be the representatives of the people, the Legislature and the government."
Crepps, however, said courts have broad power to interpret the constitution.
"This court does have an independent right to construe the Kansas Constitution," she said. "But that understanding of what those rights are has evolved, and this court has recognized ... that the rights need to evolve to recognize changing social conditions and the general march of progress and greater recognition of liberty."
Biles asked early in the hearing whether under state law a woman whose life was at stake still could be denied an abortion if the state does not recognize any right to abortion.
"Under my hypothetical, is there any limitation on Kansas government telling that woman she has to die for the cause?" Biles asked.
McAllister then paused and struggled for an answer before saying, "That's one that would make one uncomfortable, your honor, but I don't think you have to go that far to resolve this case."
"Does that make the answer no?" Beier interjected. "The uncomfortable answer you're trying not to give is 'No, there's no limitation.'"
Another issue at stake is, if the court does recognize a right to abortion, what standard it should use in deciding whether the Legislature has violated that right.
In U.S. constitutional law, courts generally use two standards, the most common being the "rational basis" standard, which says the government must show there was a rational basis in passing a law or taking other actions that may have infringed on a particular right.
But in dealing with "fundamental rights," such as freedom of religion or speech, courts impose a "strict scrutiny" standard in which the government has to show a "compelling state interest" in whatever it does, and that the law or regulation was "narrowly tailored" to achieve that objective without infringing too far on a constitutional right.
In abortion cases, however, the U.S. Supreme Court has adopted a middle standard, which says women have a protected right to choose an abortion, up to the point where the fetus could be viable on its own. But in regulating that right, the government cannot impose an "undue burden" on a woman's ability to exercise that right.
Crepps argued that the Kansas Supreme Court should apply the highest standard of strict scrutiny.
"Our view is that, given the fundamental nature of the rights and liberty interests that are implicated by the right to abortion, including privacy, autonomy, dignity and bodily integrity, that this fundamental right should be viewed under strict scrutiny."
In the case of the D & E ban, she said, the state could not assert any compelling interest in protecting the life of the unborn child because the law doesn't prohibit an abortion, only one particular method of it.
McAllister, however, argued that if the court finds such a right, it should be subject to the lower "rational basis" standard.
Whatever the court decides, the case is destined to return to Shawnee County District Court, where a judge has only issued a temporary injunction against enforcing the law. The Supreme Court's decision will determine what the lower court does with the case next.
A decision could come within the next few months.