Casey, it reaffirmed the essential holding of Roe, the right of a woman to have an abortion. When the Court had the opportunity in Planned Parenthood v. īy the early 1990s, many thought the Supreme Court might be poised to revisit, or even overturn, Roe based on its changed composition. A notable exception to this was the consistent ruling that states may restrict the use of public funds or facilities for abortion, and that the right to abortion did not carry with it an affirmative funding obligation. Two scholars described the federal courts’ jurisprudence in this area as having created a public health vacuum endangering the lives and health of women. So, federal appellate and district courts invalidated more than 20 first-trimester clinic health and safety regulations, including admitting privilege and clinic licensure requirements. Recall, maternal health wasn’t a “compelling” state interest until the second trimester. For example, under the Roe regime, the Supreme Court struck down a 24-hour waiting period, a parental consent requirement, various informed consent requirements, and a requirement of humane disposal of fetal remains. In the years after Roe, very little legislation survived this heightened judicial scrutiny including many laws that today have broad support among most Americans, whether they identify as pro-life or pro-choice. After the first trimester, states may regulate abortion “in ways that are reasonably related to maternal health.” After viability, a state may regulate and even proscribe abortion because of its interest in the “potentiality of human life” but must include exceptions for the preservation of the life or health of the mother. Thus, states have no compelling interest during the first trimester that would justify regulating abortion at all. Under that framework, during the first trimester of pregnancy, “the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician” without interference of the state. Therefore, it set forth the trimester framework for weighing those growing interests of the state. The Roe Court acknowledged that states have legitimate interests that “grow as the woman approaches term,” eventually becoming compelling. This standard, “strict scrutiny,” is known colloquially among lawyers as “strict in theory, fatal in fact.” Under strict scrutiny, in order for an abortion regulation to pass constitutional muster, the state must demonstrate that it has a “compelling state interest” and that the law in question is “narrowly drawn to express only the legitimate state interests at stake.” Describing the right to terminate a pregnancy as akin to a “fundamental” right, the Court determined that challenged abortion laws must be analyzed under the highest level of judicial review.

Wade was that laws involving a woman’s decision to terminate her pregnancy implicate a right to privacy. This paper provides a brief sketch of the key, relevant aspects of those two cases, background which demonstrates the astonishing breadth of the Hodes decision. Wade and the 1992 case which altered its impact, Planned Parenthood v. In order to appreciate the expansiveness of the court’s holding, one needs to understand Roe v. The most important (and decisive) point to emphasize is that the standard of judicial review adopted by the court in Hodes is so rigorous that it is likely to unsettle existing abortion law in Kansas and result in a legal landscape for abortion in this state that is more permissive of abortion than either the current federal standard or the original federal standard established by Roe v. This paper is focused on a narrow matter, namely, the nature of the standard of judicial review adopted by the Kansas Supreme Court in Hodes & Nauser v. To view this report as a PDF, see: Impact of the Strict Scrutiny Standard of Judicial Review on Abortion Legislation Under the Kansas Supreme Court’s Decision in Hodes & Nauser v.

This is Issue 42 in CLI’s On Point Series.

Levels of scrutiny