SKIP TO CONTENT Account SUBSCRIBER EDITION Part of the McClatchy Media Network Tuesday, November 14, 2023 Today's eEdition 55°F 70° 42° Obituaries Sports Business Opinion Dining Jobs/Recruiting Personal Finance Betting Shopping How Kansas abortion protections could now impact voting, trans rights & death penalty BY KATIE BERNARD UPDATED NOVEMBER 09, 2023 1:58 PM Kansas Supreme Court Justice Dan Biles questions Kansas Solicitor General Anthony Powell presented during oral arguments on abortion earlier this year. (Pool Photo by Evert Nelson/The Capital-Journal) TOPEKA Editor’s note: Reality Check is a Star series holding those in power to account and shining a light on their decisions. Have a suggestion for a future story? Email [email protected]. The 2019 ruling that established abortion as a constitutional right in Kansas could have major implications on the state’s voting laws. The Kansas Supreme Court is currently considering arguments from voting rights groups who claim voting rights are a fundamental right and therefore, because of the abortion case, subject to the court’s highest level of scrutiny. The case could have monumental fall out for election laws in Kansas but the court’s decision will also hold major implications for whether the 2019 Hodes ruling extends beyond abortion rights to become one of the most consequential civil rights rulings in the state. It’s been four years since the Kansas Supreme Court’s 6-1 ruling that the Kansas Constitution contained a right to bodily autonomy, and therefore an individual’s right to an abortion. That case has had major reverberations in abortion politics and law in Kansas, resulting in a failed amendment push as well as court injunctions and rejections of numerous laws limiting Kansans’ access to the procedure. Progressive litigants are also pushing to cement the case, commonly referred to as Hodes, as a pivotal piece of civil rights law. In an era where the U.S. Supreme Court is rolling back protections of civil rights, litigants say Hodes will prove the Kansas Constitution offers a higher level of protection for Kansans’ rights than the U.S. Constitution. The case has been used as an argument to apply the court’s highest bar to any limits on voting rights, to eliminate the death penalty and to preserve rights for transgender Kansans. In just the past week alone the ruling has been referenced in an injunction against decades-old abortion restrictions and used to argue for strict protection of voting rights. On Monday a Shawnee County judge held a hearing in another case that will cover how that ruling bears on transgender Kansans’ ability to change their gender marker on driver’s licenses. “When we’re talking about something like autonomy and dignity and privacy those are pretty expansive rights and government intrusion on those rights should have a high level of scrutiny to ensure there is not a deep government invasion into the personal decisions that we have,” said Sharon Brett, legal director at the ACLU of Kansas. “There is some language within the Hodes opinion that is really important in reinforcing that concept that extends far beyond just the right to an abortion.” The court’s ruling was based on a little referenced portion of Kansas’ constitution, Section One of the Kansas Bill of Rights. The section states “all men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.” Stephen McAllister, Kansas’ former solicitor general who teaches state constitutional law at the University of Kansas Law School, said the court’s ruling on Hodes opened up a world of litigation around Kansas’ constitution that had not been tread before. Prior to that case, McAllister said, the court had largely treated Kansas’ bill of rights as the equivalent of federal rights. “Section One has been long overdue for some life and Hodes gives it that,” McAllister said. “Hodes’ lengthy discussion of natural law and that sort of thing just kind of opens the door to section one having something to say in a number of areas.” “I think it’ll be referenced for a long time because unless the court overrules it or significantly alters it it’s always a potentially powerful precedent out there,” he added. Kansas, McAllister said, is an example of a national shift in recent years to consider state constitutions as unique protectors of rights. This, he said, accelerated after the U.S. Supreme Court overturned Roe v. Wade, sending the issue of abortion back to the states. At this point only one non-abortion case involving the Hodes case is directly before the Kansas Supreme Court. That case seeks to apply the same strict standard the court applied to abortion restricts to restrictions on Kansans voting rights. That case could have an expansive impact. “It would make Kansas, certainly, move significantly along the spectrum toward making voting easier,” said Mark Johnson, a Kansas attorney who has focused on voting rights. “It would also, I think, discourage the Legislature from passing new (restrictions).” But the ACLU also sought to apply the right to bodily autonomy to reverse the death penalty. That case was settled with a plea deal that avoided the death penalty before any ruling was rendered on the constitutional question. In another case, the ACLU is arguing before a district court that a Kansas law defining man and woman by sex assigned at birth is unconstitutional because it denies transgender Kansans bodily autonomy. That case is currently in Shawnee County District Court but it is expected to land in the state Supreme Court. How the court responds to these cases, and others seeking to narrow or overturn the Hodes ruling, will be critical to the future of Kansas civil rights law. If the Kansas Supreme Court adopts interpretations of the Hodes ruling that expands it to other rights the potential for other rights to be included are seemingly boundless. Speaking to reporters after a court hearing earlier this year Anthony Powell, Kansas’ current solicitor general under Republican state Attorney General Kris Kobach, said he expected the full impact of Hodes to play out over the next five to 12 years. “There’s all a variety of personal autonomy issues that could be implicated,” Powell said. “Your right to consume alcohol or drugs, vaping. All those issues, you can see where personal autonomy may come into play.” “We’re gonna have to litigate them one by one and see where the court takes us in terms of drying up and scoping out the right.” Brittany Jones, a lobbyist for Kansas Family Voice, a conservative Christian policy group, said she expected litigation to push against conservative positions on culture war issues like transgender rights and marijuana access. If the court expands the scope of Hodes, Jones said, “I think there are eventually going to be some conversations about how we truly protect the fabric of our society. How we protect parental rights in some areas potentially, how we protect different medical rights.” “We’re at the beginning of the court’s use of Hodes and so how that moves forward I think will have a lot of impact on just our understanding of how we recognize rights and how those are carried out,” Jones said. At this point, Jones said, there is no reason to believe the Kansas Legislature couldn’t continue to pursue right-wing policies like bans on hormone therapy and gender affirming surgery for transgender youth. But depending on the direction the court takes with the ruling, Brett said it could serve as an important backstop against lawmakers who have pursued increasingly conservative policies in recent years. “The Kansas Supreme Court plays a vital role in protecting residents of Kansas from unjustified government intrusion into their private affairs,” Brett said. “That’s why this decision has such a significant impact and it’s why you’ve seen legislators who are against this decision go to such great lengths to try to avoid its continued application.” This story was originally published November 9, 2023, 8:00 AM. FOLLOW MORE OF OUR REPORTING ON ‘Not really tethered to facts.’ KS Legislature gives platform to election misinformation OCTOBER 03, 2023 6:00 AM RELATED STORIES FROM WICHITA EAGLE Kansas Supreme Court considers case with potential to upend state election law NOVEMBER 03, 2023 1:37 PM KATIE BERNARD (816)234-4167 Katie Bernard covers Kansas politics and government for the Kansas City Star. She joined the paper in 2019 and became the Topeka Statehouse correspondent in 2020. Katie was part of the team that won the Headliner award for political coverage in 2023. Take Us With You Real-time updates and all local stories you want right in the palm of your hand. THE WICHITA EAGLE APP SUBSCRIPTIONS Start a Subscription Customer Service eEdition Vacation Hold Pay Your Bill LEARN MORE About Us Contact Us Newsletters Archives Personal Finance ADVERTISING McClatchy Advertising Place an Ad Place a Classified Ad Place an Obituary Staffing Solutions Political | Advocacy Advertising Part of the McClatchy Media Network COPYRIGHT COMMENTING POLICY PRIVACY POLICY YOUR PRIVACY CHOICES TERMS OF SERVICE
Read more at: https://www.kansas.com/news/politics-government/article281598463.html#storylink=cpy