## Facts

- Kansas enacted S.B. 95 (K.S.A. 65-6741 to 65-6749) in 2015, prohibiting the standard dilation-and-evacuation (D&E) method for most second-trimester abortions, with narrow life-and-health exceptions.
- An OB-GYN practice and two physicians who provided second-trimester abortions alleged the law would effectively prevent them from offering most second-trimester abortions.
- Plaintiffs asserted the statute would compel the use of additional, more invasive and riskier interventions (e.g., inducing fetal demise) contrary to medical judgment and patient preferences.
- Plaintiffs challenged the law under the Kansas Constitution Bill of Rights, primarily § 1 (natural rights, including “life, liberty, and the pursuit of happiness”) and also § 2.
- The district court granted a temporary injunction preventing the law from taking effect; the court of appeals evenly split, leaving the injunction in place; the Kansas Supreme Court granted review.
- The Kansas Supreme Court addressed only whether the temporary injunction was proper and what state-constitutional standard governs the claim.

## Issues

1. Whether Kansas Constitution Bill of Rights § 1 protects a fundamental right of personal autonomy that includes a woman’s decision to continue a pregnancy or obtain an abortion.
2. If so, what level of scrutiny applies to abortion restrictions under the Kansas Constitution and whether plaintiffs satisfied the requirements for a temporary injunction against S.B. 95.

## Decision

- The Kansas Supreme Court affirmed the temporary injunction in a 6–1 decision.
- The court held that § 1 protects a fundamental right of personal autonomy that includes the right to decide whether to continue a pregnancy.
- Because the right is fundamental, abortion restrictions are subject to strict scrutiny under the Kansas Constitution.
- The court concluded plaintiffs showed a substantial likelihood of success that S.B. 95 unconstitutionally impaired § 1 rights and that irreparable harm and the remaining injunction factors supported preserving the status quo.
- A dissent argued § 1 does not create an enforceable right to abortion and criticized the majority’s interpretive method.

## Legal Principles

- Kansas Constitution Bill of Rights § 1 protects nonenumerated, inalienable natural rights, including personal autonomy, bodily integrity, and self-determination.
- The constitutional protection of personal autonomy includes a woman’s decision whether to continue a pregnancy.
- Abortion restrictions that burden this fundamental right must satisfy strict scrutiny: the State must prove a compelling interest and narrow tailoring.
- State constitutional protections may exceed federal constitutional minimums; Kansas is not required to apply the federal undue-burden framework when adjudicating claims under § 1.
- A temporary injunction may issue when plaintiffs show: likely success on the merits, irreparable injury, no adequate legal remedy, a favorable balance of harms, and consistency with the public interest.

## Conclusion

The Kansas Supreme Court recognized a state-constitutional fundamental right to abortion within § 1’s protection of personal autonomy and held that laws restricting that right are reviewed under strict scrutiny, affirming a temporary injunction against enforcement of Kansas’s prohibition on the standard second-trimester D&E procedure.


Hodes & Nauser, MDs, P.A. v. Schmidt, 440 P.3d 461 (Kan. 2019)