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In the Supreme Court of the State of Kansas

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In the Supreme Court of the State of Kansas IN THE SUPREME COURT OF THE STATE OF KANSAS No. 114,153 HODES & NAUSER, MDS, P.A.; HERBERT C. HODES, M.D.; and TRACI LYNN NAUSER, M.D., Appellees, v. DEREK SCHMIDT, in His Official Capacity as Attorney General of the State of Kansas; and STEPHEN M. HOWE, in His Official Capacity as District Attorney for Johnson County, Appellants. SYLLABUS BY THE COURT 1. To obtain a temporary injunction, a plaintiff must show the court: (1) The plaintiff has a substantial likelihood of eventually prevailing on the merits; (2) a reasonable probability exists that the plaintiff will suffer irreparable injury without an injunction; (3) the plaintiff lacks an adequate legal remedy, such as damages; (4) the threat of injury to the plaintiff outweighs whatever harm the injunction may cause the opposing party; and (5) the injunction will not be against the public interest. 2. When a party alleges a trial court erred in issuing a temporary injunction, an appellate court examines whether the court abused its discretion. A trial court abuses its discretion if its decision is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. 1 3. Kansas courts have the authority to interpret Kansas constitutional provisions independently of the manner in which federal courts interpret similar or corresponding provisions of the United States Constitution. This can result in the Kansas Constitution protecting the rights of Kansans more robustly than would the United States Constitution. 4. Kansas courts look to the words of the Kansas Constitution to interpret its meaning. When the words do not make the drafters' and people's intent clear, courts look to the historical record, remembering the polestar is the intention of the makers and adopters of the relevant provisions. 5. Appellate courts conduct de novo review of issues requiring the interpretation of constitutional provisions, which means appellate courts are not bound by the interpretation of a lower court. 6. Section 1 of the Kansas Constitution Bill of Rights sets forth rights that are broader than and distinct from the rights in the Fourteenth Amendment to the United States Constitution. 7. The rights acknowledged in section 1 of the Kansas Constitution Bill of Rights are judicially enforceable against governmental action that does not meet constitutional standards. 2 8. Section 1 of the Kansas Constitution Bill of Rights affords protection of the right of personal autonomy, which includes the ability to control one's own body, to assert bodily integrity, and to exercise self-determination. 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. 9. The State may only infringe upon the right to decide whether to continue a pregnancy if the State has a compelling interest and has narrowly tailored its actions to that interest. 10. When common-law terms are used in the Kansas Constitution Bill of Rights, courts should look to common-law definitions for their meaning. 11. The recognition of inalienable natural rights in section 1 of the Kansas Constitution Bill of Rights is intended for all Kansans, including pregnant women. 12. The Kansas Constitution does not begin with an enumeration of the powers of government; it instead begins with a Bill of Rights for all Kansans, which in turn begins with a statement of inalienable natural rights, among which are life, liberty, and the pursuit of happiness. By this ordering, demonstrating the supremacy placed on the rights of individuals, preservation of these natural rights is given precedence over the establishment of government. 3 13. This court, when considering claims brought under section 1 of the Kansas Constitution Bill of Rights has recognized and adopted three standards: (1) the rational basis standard, which requires only that the enactment bear some rational relationship to a legitimate state interest; (2) the heightened or intermediate scrutiny standard, which requires the enactment to substantially further an important state interest; and (3) the strict scrutiny standard, which requires the enactment serve some compelling state interest and be narrowly tailored to further that interest. The determination of which of the three standards applies depends on the nature of the right at stake. 14. The most searching of these standards—strict scrutiny—applies when a fundamental right is implicated. 15. The natural right of personal autonomy is fundamental and thus requires applying strict scrutiny. 16. Under strict scrutiny, the burden falls on the government to defend challenged legislation. 17. Before a court considers whether any governmental action survives strict scrutiny, it must be sure the action actually impairs the right. 4 18. Generally, a statute comes before the court cloaked in a presumption of constitutionality, and it is the duty of the one attacking the statute to sustain the burden of proving unconstitutionality. 19. When a statute is presumed constitutional, all doubts must be resolved in favor of its validity. If there is any reasonable way to construe that statute as constitutionally valid, the court has the authority and duty to do so. 20. In a case involving a suspect classification or fundamental interest, the courts peel away the protective presumption of constitutionality and adopt an attitude of active and critical analysis, subjecting the classification to strict scrutiny. In that case, the burden of proof is shifted from plaintiff to defendant and the ordinary presumption of validity of the statute is reversed. 21. No presumption of constitutionality applies to a statute subject to strict scrutiny under section 1 of the Kansas Constitution Bill of Rights. Review of the judgment of the Court of Appeals in 52 Kan. App. 2d 274, 368 P.3d 667 (2016). Appeal from Shawnee District Court; LARRY D. HENDRICKS, judge. Opinion filed April 26, 2019. The judgment of the Court of Appeals affirming the district court is affirmed. The judgment of the district court is affirmed, and the case is remanded. Stephen R. McAllister, solicitor general, argued the cause, and Sarah E. Warner and Shon D. Qualseth, of Thompson Ramsdell Qualseth & Warner, P.A., of Lawrence, Jeffrey A. Chanay, chief deputy attorney general, Dennis D. Depew, deputy attorney general, Dwight R. Carswell, assistant solicitor 5 general, Bryan C. Clark, assistant solicitor general, and Derek Schmidt, attorney general, were with him on the briefs for appellant. Janet Crepps, of Center for Reproductive Rights, of New York, New York, argued the cause, and Genevieve Scott and Zoe Levine, of the same office, Erin Thompson, of Foland, Wickens, Eisfelder, Roper and Hofer, P.C., of Kansas City, Missouri, Lee Thompson, of Thompson Law Firm, LLC, of Wichita, Robert V. Eye, of Robert V. Eye Law Office, LLC, of Lawrence, and Teresa A. Woody, of The Woody Law Firm PC, of Kansas City, Missouri, were with her on the briefs for appellee. Mary Ellen Rose, of Overland Park, Kevin M. Smith, of Law Offices of Kevin M. Smith, P.A., of Wichita, and Paul Benjamin Linton, of Thomas More Society, of Northbrook, Illinois, were on the briefs for amicus curiae Family Research Council. Stephen Douglas Bonney, of ACLU Foundation of Kansas, of Overland Park, and Brianne J. Gorod and David H. Gans, of Constitutional Accountability Center, of Washington, D.C., were on the brief for amici curiae Constitutional Accountability Center and American Civil Liberties Union Foundation of Kansas. Frederick J. Patton, II, of Patton and Patton Chartered, of Topeka, and Teresa S. Collett, of Saint Paul, Minnesota, were on the briefs for amicus curiae Kansans for Life. Mark P. Johnson, of Dentons US LLP, of Kansas City, Missouri, was on the brief for amici curiae Kansas physicians. Don Saxton, of Saxton Law Firm LLC, of Kansas City, Missouri, and Kimberly A. Parker, Skye L. Perryman, Brittani Kirkpatrick Ivey, and Souvik Saha, of Wilmer Cutler Pickering Hale and Dorr LLP, of Washington, D.C., were on the briefs for amicus curiae American College of Obstetricians and Gynecologists. Richard J. Peckham, of Andover, and Mathew D. Staver and Horatio G. Mihet, of Liberty Counsel, of Orlando, Florida, were on the brief for amici curiae American Association of Pro-Life Obstetricians & Gynecologists, American College of Pediatricians, and Catholic Medical Association. 6 PER CURIAM: Section 1 of the Kansas Constitution Bill of Rights provides: "All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness." We are now asked: Is this declaration of rights more than an idealized aspiration? And, if so, do the substantive rights include a woman's right to make decisions about her body, including the decision whether to continue her pregnancy? We answer these questions, "Yes." We conclude that, through the language in section 1, the state's founders acknowledged that the people had rights that preexisted the formation of the Kansas government. There they listed several of these natural, inalienable rights—deliberately choosing language of the Declaration of Independence by a vote of 42 to 6. Included in that limited category is the right of personal autonomy, which includes the ability to control one's own body, to assert bodily integrity, and to exercise self- determination. 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. Although not absolute, this right is fundamental. Accordingly, the State is prohibited from restricting this right unless it is doing so to further a compelling government interest and in a way that is narrowly tailored to that interest. And we thus join many other states' supreme courts that recognize a similar right under their particular constitutions.
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