KS Supreme Court justice, attorney general link Carr death penalty ruling to abortion

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Like nearly everything else in Kansas politics, the Carr brothers murder case has become part of the unending war over abortions.

In the wake of Friday’s Kansas Supreme Court decision upholding the death penalty for Carrs, one justice and the state attorney general are drawing lines to state abortion law.

Part of Jonathan and Reginald Carr’s appeals to avoid execution cite a state Supreme Court ruling upholding a woman’s right to an abortion, based on Section 1 of the Kansas Bill of Rights: “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”

Anti-abortion conservatives have opposed this ruling since it was rendered in a case called Hodes & Nauser, MDs v. Schmidt in 2019.

On Friday, Attorney General Derek Schmidt — who lost the Hodes case — and state Supreme Court Justice Caleb Stegall — its only dissenter on the court — both criticized the Hodes decision for opening an avenue of appeal for the Carrs, who killed five people in a 2000 spree in Wichita.

The Carrs argued that under Section 1, the state could not constitutionally deprive them of their lives by imposing the death penalty.

The Supreme Court disagreed, but Schmidt used the Carr appeals as a springboard to campaign for the “Value Them Both” amendment on the August primary election ballot.

The proposed amendment is designed to prevent the court from citing the state Constitution to overturn abortion restrictions passed by the Legislature.

“Today’s decision is important principally because of what it means for justice in the horrific murders committed by the Carr brothers in Wichita,” Schmidt said in a statement. “But it also is important because the Kansas Supreme Court has now limited the effect of its Hodes & Nauser decision. It increasingly appears that the Hodes decision, which I continue to believe was erroneous as a matter of state constitutional law, may apply only to abortion, and Kansas voters will have the opportunity in August to correct that mistaken interpretation of our state constitution through the public vote on the proposed Value Them Both Amendment.”

Schmidt, a Republican, is challenging Democratic Gov. Laura Kelly in the November election.

The Hodes decision overturned a law passed by the Legislature in 2015 seeking to prohibit a method of late-term abortion called “dilation and extraction.”

Part of that ruling found that Section 1 guarantees a woman’s bodily autonomy and therefore, her right to an abortion.

The Supreme Court ruled that Section 1 granted “rights that are broader than and distinct from the rights described in the (U.S. Constitution’s) Fourteenth Amendment.”

Death-row defendants have since sought to test how far those broader rights extend.

“The defendants in all the then-pending capital appeals sought leave to raise . . . a new issue challenging the constitutionality of the death penalty under section 1,” Friday’s court ruling in the Carr case said.

The Supreme Court decision clearly shot down the Carrs’ claim that imposing the death penalty violated their right to life.

“Section 1 of the Kansas Constitution Bill of Rights acknowledges a person’s inalienable right to life, but that right is not absolute or nonforfeitable,” the majority opinion said. “Once a defendant has been convicted of capital murder beyond reasonable doubt, the defendant forfeits his or her natural rights under section 1 . . . and the state may impose punishment for that crime pursuant to the provisions of Kansas’ capital sentencing scheme.”

Stegall — the only appointee of former Republican Gov. Sam Brownback — issued a separate opinion in the Carr case Friday.

He concurred with the overall outcome but assailed the Hodes decision.

“I join the majority’s decision to affirm,” Stegall wrote. “But I do so with deep doubts and reluctance because this court’s section 1 jurisprudence—begun in Hodes & Nauser, MDs v. Schmidt . . . and continued today — is a gross constitutional error. I continue to dissent from that error.”

Stegall also lashed out at the written majority opinion in the Hodes case.

“According to the Hodes majority, I desired to leave ‘naked and defenseless’ citizens with no recourse against the ‘unrestrained’ power of the state which had ‘no practical limits’ and would ‘intrude with impunity’ against the individual.”

Stegall called that a flimsy fabrication.

“At the time Hodes was decided, however, the majority could get away with this faulty-but effective rhetoric because it viewed itself as standing nobly between an aggressively paternalist government and the rights of women,” he wrote. “It has taken today’s (Carr) case—and likely future cases as well—to clarify what was really going on.”

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