In Hodes & Nauser, MDs, P.A. v. Schmidt, the Kansas Supreme Court sustained a temporary injunction against the enforcement of a bill that:
[P]rohibits physicians from performing a specific abortion method referred to in medical terms as Dilation and Evacuation (D & E) except when “necessary to preserve the life of the pregnant woman” or to prevent a “substantial and irreversible physical impairment of a major bodily function of the pregnant woman.”
The Court noted that 95% of second-trimester abortions in the United States are performed using the D & E procedure.
What is most significant about the ruling is (i) that it relies on the authority of the state constitution, thus cannot be reviewed by the U.S. Supreme Court and (ii) it rests on Section 1 of the Kansas Constitution Bill of Rights. That Section provides that:
All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.
The Court held that this provision is not merely an “idealized aspiration,” but sets forth “substantive rights [that] include a woman’s right to make decisions about her body, including the decision whether to continue her
pregnancy.”
Those who bang on the issue of “original intent” should be comfortable with the ruling since it carefully examines the historical and philosophical foundation of Section 1, citing, inter alia, John Locke, Sir William Blackstone, Sir Edward Coke, Edmund Burke, James Kent, Louis Brandeis, Dr. James Mohr, author of “The Origins and Evolution of National Policy, 1800-1900 (1978),” and Edward Mansfield.
Note: The citation to Mansfield is used more to refute Mansfield than to celebrate him.
[T]he husband’s control over the person of his wife is so complete that he may claim her society altogether; that he may reclaim her if she goes away or is detained by others; that he may use gentle constraint upon her liberty to prevent her going away, or to prevent improper conduct; that he may maintain suits for injuries to her person; that he may defend her with force; that she cannot sue alone; and that she cannot execute a deed or valid conveyance, without the concurrence of her husband. In most respects she loses the power of personal independence, and altogether that of separate action in legal matters.
Mansfield, The Legal Rights, Liabilities and Duties of Women 272-73.
Quite apart from the strategic/tactical advance in the battle over a woman’s right to choose, the opinion offers a good theoretical framework for addressing the issues.
Mansfield wrote that a husband “may use gentle constraint upon” his wife. Does anyone know how Mansfield, or the law of his era in general, would have distinguished “gentle” from “not gentle” constraint? What is an example of “gentle constraint”?
Also, since, by implication, wives had a right to be protected from “not gentle” constraint, from where did that right derive? Mansfield writes, “[T]he husband’s control over his wife is so complete that … ,” which seems to imply that it is less than complete. Well, Wikipedia states that historian Lawrence M. Friedman wrote: “Ten Southern codes made it a crime to mistreat a slave…. Under the Louisiana Civil Code of 1825 (art. 192), if a master was ‘convicted of cruel treatment,’ the judge could order the sale of the mistreated slave, presumably to a better master.”