Hodes & Nauser v. Kobach

551 P.3d 37

HODES & NAUSER, MDS, P.A.; and Traci Lynn Nauser, M.D., Appellees,

v.Kris KOBACH, 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.

No. 124,130

Supreme Court of Kansas.

Oral Argument Held on March 27, 2023

Opinion Filed July 5, 2024

West Codenotes

Held Unconstitutional

Kan. Stat. Ann. §§ 65-6741, 65-6742, 65-6743, 65-6744, 65-6745, 65-6746, 65-6747, 65-6748, 65-6749, 65-6750, 65-6751, 65-6752, 65-6753, 65-6754, 65-6755, 65-6756, 65-6757, 65-6758, 65-6759

Syllabus By the Court

1. The law-of-the-case doctrine restricts a party from relitigating an issue already decided on appeal in successive stages of the same proceeding.

2. Exceptions to the law-of-the-case doctrine are when (1) a subsequent trial produces substantially different evidence; (2) a controlling authority has made a contrary decision regarding the law applicable to the issues; or (3) the prior decision was clearly erroneous and would work a manifest injustice.

3. Section 1 of the Kansas Constitution Bill of Rights protects a fundamental right to personal autonomy, which includes the right to decide whether to terminate a pregnancy.

4. Impairment of the right to terminate a pregnancy must withstand strict scrutiny. The plaintiff carries the burden to show government action impairs this right.

5. Once the plaintiff shows government action impairs the right to terminate a pregnancy, the burden shifts to the government to show that this impairment withstands strict scrutiny. Under the strict scrutiny standard, the government must show three things: (1) it has a compelling interest; (2) the challenged action actually furthers that interest; and (3) it does so in a way that is narrowly tailored.

6. Government interests are more likely to be compelling when they are concrete and exhibit some level of specificity, rather than broad and open to wide interpretation and inclusion of a great array of concerns.

7. Courts consider one or more of the following three components in deciding whether a law is narrowly tailored: whether the government's action is necessary, whether the government’s action is underinclusive, and whether the government’s action is over-inclusive.

8. The government must rely on actual evidence to show its action withstands strict scrutiny.

Appeal from Shawnee District Court; Teresa L. Watson, judge.

Anthony J. Powell, solicitor general, argued the cause, and Brant M. Laue, former solicitor general, Jeffrey A. Chanay, former chief deputy attorney general, Dwight R. Carswell, deputy solicitor general, Shannon Grammel, former deputy solicitor general, and Derek Schmidt, former attorney general, were on the briefs for appellants.

Jiaman Wang, pro hac vice, of Center for Reproductive Rights, of New York, New York, argued the cause, and Genevieve Scott, pro hac vice, of the same organization, Paul Rodney, pro hac vice, of Arnold & Porter Kaye Scholer LLP, of Denver, Colorado, and Teresa A. Woody, of The Woody Law Firm P.C., of Kansas City, Missouri, were with her on the brief for appellees.

The opinion of the court was delivered by Rosen, J.:

This case returns after we held in 2019 that the Kansas Constitution protects a fundamental 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." Government infringement of that right must withstand strict scrutiny. Hodes & Nauser, MDs, P.A. v. Schmidt, 309 Kan. 610, 614, 440 P.3d 461 (2019) (Hodes I). We remanded the case to the district court to apply this standard to whatever evidence the parties offered so it could determine whether legislation banning the most common method of second-trimester abortion violates this protection. The district court found the only evidence offered demonstrated there was "no reasonable alternative" to that procedure. It held the State failed to carry its burden to show the legislation was constitutional and imposed a permanent injunction. This is the direct appeal from that decision. We affirm the district court’s order.

Factual and Procedural History

In 2015, the Kansas Legislature enacted S.B. 95. Hodes I, 309 Kan. at 614, 440 P.3d 461; K.S.A. 65-6741 et seq. S.B. 95 effectively bans a common method of second-trimester abortion called Dilation and Evacuation except when a D & E is "necessary to preserve the life of the pregnant women" or to prevent a "substantial and irreversible physical impairment of a major bodily function of the pregnant woman." K.S.A. 65-6743(a). The bill was scheduled to go into effect on July 1, 2015. K.S.A. 65-6741.

But on June 1, 2015, Herbert C. Hodes, M.D., Traci Lynn Nauser, M.D., and Hodes & Nauser, MDs, P.A., (Providers), doctors who perform D & E abortions in Kansas, sued. They contended sections 1 and 2 of the Kansas Constitution Bill of Rights protect a right to abortion and that S.B. 95 violates this right. The Providers filed a motion for temporary injunction to prevent S.B. 95 from taking effect while the case moved forward.

The defendants (then Derek Schmidt as the Attorney General of Kansas and Stephen Howe as the district attorney for Johnson County, now Kris Kobach as the Attorney General of Kansas and Howe) (the State) opposed the temporary injunction. The State argued there is no right to abortion under the Kansas Constitution. Alternatively, the State argued even if there is a Kansas constitutional right to abortion, S.B. 95 did not violate that right because alternative methods of second-trimester abortion are available.

The district court granted the temporary injunction after concluding the Providers were substantially likely to prevail on their claim that S.B. 95 violates the Kansas Constitution Bill of Rights. It concluded the Kansas Constitution protects a right to abortion to the same extent the federal Constitution protected a right to abortion at that time. The State immediately appealed from this temporary injunction to the Court of Appeals under K.S.A. 2014 Supp. 60-2102(a)(2).

Sitting en banc, an evenly divided Court of Appeals affirmed the district court. Hodes & Nauser, MDs, P.A. v. Schmidt, 52 Kan. App. 2d 274, 368 P.3d 667 (2016). Seven judges concluded the Kansas Constitution protects a right to an abortion and concluded the injunction should be affirmed. 52 Kan. App. 2d at 275, 368 P.3d 667. Six of those judges applied an undue burden standard developed in Planned Parenthood of Southeastern PA. v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992). Hodes, 52 Kan. App. 2d at 290-91, 368 P.3d 667. Judge Atcheson concurred but believed a standard akin to strict scrutiny was more appropriate. 52 Kan. App. 2d at 328, 368 P.3d 667. The seven remaining judges dissented, concluding there was no right to an abortion under the Kansas Constitution. 52 Kan. App. 2d at 330, 368 P.3d 667. Because the panel split evenly on the result, the district court was affirmed. 52 Kan. App. 2d at 295, 368 P.3d 667. The State appealed to this court.

We affirmed the temporary injunction. We ruled section 1 of the Kansas Constitution Bill of Rights protects a right to choose whether to continue a pregnancy. But we departed from the lower courts’ application of the undue burden standard. Because section 1 "identifies rights distinct from and broader than those listed in the Fourteenth Amendment," the federal standard provided a less rigorous method for considering whether government action violated the Kansas Constitution. Hodes I, 309 Kan. at 624, 440 P.3d 461. We reasoned that strict scrutiny, as the "most searching of … standards," was the better test to utilize when considering whether the government would be permitted to curtail a fundamental right protected by section 1. 309 Kan. at 663, 440 P.3d 461. We explained, "Under our strict scrutiny standard, the State is prohibited from restricting that right unless it can show it is doing so to further a compelling government interest and in a way that is narrowly tailored to that interest." 309 Kan. at 680, 440 P.3d 461.

We agreed with the district court’s holding that the plaintiffs were substantially likely to succeed on their claim that S.B. 95 violates the Kansas Constitution. Although we ruled that strict scrutiny, rather than the undue burden standard used by the district court, is the appropriate test, we reasoned that applying strict scrutiny would not change the outcome because strict scrutiny is more demanding on the State and thus a less rigorous standard for the plaintiffs to meet. Hodes I, 309 Kan. at 677, 440 P.3d 461.

We remanded the case to the district court with instructions to proceed to the full merits of the case so both sides could present evidence and arguments supporting their respective positions. We explained that, upon remand, "the State is certainly free to assert any interests it believes compelling and show how S.B. 95 is narrowly tailored to those interests." Hodes I, 309 Kan. at 680-81, 440 P.3d 461.

Back before the district court, the parties filed a joint stipulation dismissing plaintiff Herbert Hodes, who retired during the appellate proceedings. The parties entered discovery, during which the Providers served the State with requests for production of documents and interrogatories. The State served no written discovery on the Providers. The Providers disclosed three fact and expert witnesses: Plaintiff Dr. Nauser; Dr. Anne Davis, a medical expert in obstetrics and gynecology; and Dr. Thomas Cunningham, an expert in clinical ethics, bioethics, philosophical ethics, and philosophy of medicine. The State did not depose any of the Providers’ witnesses. The Providers deposed the State’s only disclosed expert, but the State later withdrew that witness ...