Case: Hodes & Nauser MDs, P.A. v. Schmidt

This is a state court case challenging an abortion restriction in Kansas, Senate Bill 95 ("SB 95"). This act sought to ban the most commonly used method of terminating a pregnancy in the second trimester, Dilation and Evacuation (“D & E”), except when continuing the pregnancy would either endanger the pregnant person’s life or major bodily function. This ban on D & E procedures was the first of its kind passed in the United States, signed into law on April 7, 2015 and scheduled to take effect on July 1, 2015.

Plaintiffs—a father-daughter team of physicians and the private OB-GYN practice they own and operate—filed their complaint in the District Court of Shawnee County, Kansas on June 1, 2015, seeking declaratory and injunctive relief. Plaintiffs, represented by the Center for Reproductive Rights, sued the Attorney General of Kansas and the District Attorney for Johnson County, where the practice was located. They brought suit under the Kansas Constitution for alleged violations of plaintiffs’ rights to due process and equal protection and plaintiffs’ patients’ rights to bodily integrity, access to abortion, and equal protection.

On June 25, 2015, Judge Larry D. Hendricks granted plaintiffs’ request for a temporary injunction. The court, noting an absence of explicit guidance from the Kansas Supreme Court, concluded that Sections 1 and 2 of the Kansas Constitution Bill of Rights independently protect the fundamental right to abortion. Since SB 95 implicated that right, the court analyzed it under a more probing standard without a protective presumption of constitutionality. Relying on the Supreme Court of the United States’ holdings in cases from 1976, 2000, and 2007 that held a ban on the most commonly used method of second-trimester abortion is unconstitutional, Judge Hendricks concluded that SB 95 imposed an “impermissible burden” on a woman’s right to terminate a pre-viability pregnancy. The court found that the less common alternative procedures defendants argued were available in place of D & E did not reduce that burden, since the procedures were unreasonable or forced unwanted treatment.

The State appealed the temporary injunction. After oral argument before the full Kansas Court of Appeals, on January 22, 2016, the appellate court upheld the district court’s decision. 368 P.3d 667. Because the appellate court was equally divided, the district court’s ruling was affirmed. The appellate court agreed with the district court that sections 1 and 2 of the Kansas Constitution Bill of Rights provide a right to abortion. Analyzing the alternative procedures defendants provided, the court found they posed an undue burden on that right.

The State appealed this decision with the Kansas Supreme Court. Oral argument took place on March 16, 2017. The Kansas Supreme Court issued a decision in plaintiffs’ favor on April 26, 2019, upholding the temporary injunction. 440 P.3d 461. For the first time, the Kansas Supreme Court ruled that Section 1 of the Kansas Constitution Bill of Rights, acknowledging rights “distinct from and broader than the United States Constitution,” contains an independent right to abortion. The Kansas Supreme Court found that, even though the district court failed to apply a strict scrutiny standard in concluding that plaintiffs were likely to prevail on the merits of their claim, the result would be the same—the temporary injunction enjoining enforcement of SB 95 was appropriate. Because the narrow question presented before it related to the temporary injunction, the Kansas Supreme Court remanded the case to the district court for a resolution on the merits. 

On remand, the district court was directed to apply a strict scrutiny standard to plaintiffs’ Section 1 claims, which required defendants to show SB 95 was narrowly tailored to serve a compelling government interest. After oral argument, the parties filed cross-motions for summary judgment, and the district court issued its opinion on April 7, 2021. 2021 WL 7450395. Judge Teresa L. Watson, who the case had been administratively reassigned to, emphasized that defendants carried the burden to prove that SB 95 was narrowly tailored to serve a compelling state interest “not only in theory, but in fact,” and failed to do so. First, defendants offered scant evidence to rebut or undermine plaintiffs’ evidence that no reasonable alternative to D & E existed and that other fetal demise procedures then available not only provided no benefit to the woman, but also increased the risk, complexity, duration, and cost of the procedure. Second, defendants offered no facts or argument about how alternatives to D & E better promoted their proffered compelling state interests of greater respect for the value or dignity of human life. Therefore, Plaintiffs’ motion for summary judgment was granted as was Plaintiffs' request for a permanent injunction prohibiting enforcement of SB 95.

After defendants filed a motion to stay on March 31, 2021, the district court denied that motion on April 26, 2021. Shortly thereafter, Defendants filed a notice of appeal to the Kansas Supreme Court on May 6, 2021. In the appeal, Defendants did not dispute the district court's factual findings, but instead asked the Supreme Court to declare that abortion was not a fundamental right and, therefore, strict scrutiny did not apply. 

The Kansas Supreme Court heard oral argument on March 27, 2023.

On July 5, 2024, the Kansas Supreme Court reaffirmed the district court's April 7, 2021 order and, contrary to defendants' request, reaffirmed the state constitutional right to abortion. 551 P.3d 37. In a majority opinion written by Judge Rosen, the Court rejected the argument that its 2019 decision was so clearly erroneous that it fell under an exception to the "law-of-the-case" doctrine, which restricts a party from relitigating an issue already decided on appeal in successive stages of the same case. It explained that the issue had already been extensively litigated in 2019, and that the federal and state cases defendants cited to that had been decided since the 2019 ruling, including Dobbs v. Jackson Women's Health Organization, did not control or cast doubt upon the Court's interpretation of the state constitution. The Court noted that while its makeup had changed since 2019, disagreement with an earlier court's reasoning or holding alone does not constitute an exception to the law-of-the-case doctrine. It then held that S.B. 95 does not survive strict scrutiny because it is not narrowly tailored; unlike the lower court, it expressed skepticism about the state's argument that S.B. 95 furthered a compelling interest by way of promoting the value and dignity of human life.

In a concurring opinion, Justice Evelyn Wilson stated she would have struck down the law as unconstitutionally vague because the exceptions to the prohibition were not sufficiently clear and left providers open to criminal liability. Justice Caleb Stegall dissented, asserting that the Kansas Constitution Bill of Rights does not include a right to abortion. 

On August 8, the Kansas Supreme Court remanded the case back down to the district court, with an order to execute the Court's judgment. As of December 23, 2024, the case is ongoing.