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.
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