An Unnatural Reading of History: The Revisionist History of Abortion in Hodes v. Schmidt

Abstract

Recently, in Hodes v. Schmidt, the Kansas Supreme Court concluded that women have a natural right to procure an abortion and that this right is subject to broader protection than afforded by the Fourteenth Amendment. Hodes relied on some of the most influential jurists and philosophers in legal history to support its reasoning, including John Locke, Edward Coke, and William Blackstone. Hodes explained that these jurists and philosophers acknowledged a natural right to bodily autonomy, and we agree with that proposition. However, in this Article, we demonstrate that Hodes failed to acknowledge specific statements from these jurists and philosophers condemning abortion. They did not believe that the natural right to bodily autonomy encompassed the right to procure an abortion. Hodes further erred by referencing specific statements on matters unrelated to abortion to support its conclusion. The court's errors created a precedent with far-reaching implications. For example, under a fair reading of Hodes, Kansans have a natural right to assisted suicide. We conclude that Hodes illustrates the danger of courts acknowledging natural rights. If courts are going to do so, they must exercise caution and restraint. Hodes has broad significance because it relied on Section 1 of the Kansas Bill of Rights. Identical or substantially similar language exists in thirty-three other state constitutions. Pro-choice advocates may reference Hodes in other jurisdictions with the hope of achieving broader protection for abortion rights than afforded by the Fourteenth Amendment. Furthermore, arguably, federal courts are becoming less favorable forums for pro-choice advocates. Moreover, there are other consequences to acknowledging a natural right. We hope to call into question the legitimacy of Hodes so as to limit its reach.