Kansas Attorney General Opinion 2015-005

March 12, 2015
ATTORNEY GENERAL OPINION NO. 2015- 5
The Honorable Randy Garber
State Representative, 62nd District
State Capitol, Room 166-W
300 S.W. 10th Avenue
Topeka, Kansas 66612
Re: 	Crimes 	and 	Punishments—Crimes 	Against 	Persons—Application 	of
Certain Crimes to an Unborn Child
State Departments; Public Officers and Employees—Attorney General—
Duties and Responsibilities; Authority to Prosecute and Defend
Constitution of the State of Kansas—Bill of Rights—Equal Rights
Synopsis: 	K.S.A. 2014 Supp. 21-5419(b) does not violate Section 1 of the Kansas
Bill of Rights. 	Unless a statute is clearly unconstitutional, the Attorney
General is required to defend the statute. 	Cited herein: 	K.S.A. 2014
Supp. 21-5419; K.S.A. 54-106; K.S.A. 2014 Supp. 75-702; Kan. Const.,
Bill of Rights, § 1.
* 	* 	*
Dear Representative Garber:
As State Representative for the 62nd District, you ask our opinion on two questions
related to the interaction between and among Section 1 of the Kansas Bill of Rights,
K.S.A. 2014 Supp. 21-5419(b),1 and K.S.A. 2014 Supp. 75-702. 	The pertinent parts of
those three provisions are set forth below, respectively:
1 K.S.A. 2014 Supp. 21-5419, known as Alexa’s Law, applies certain crimes to an unborn child by defining
"person" and "human being" to also mean an unborn child in the enumerated crimes.

Representative Garber
Page 2
Bill of Rights. Section 1: 	“All men are possessed of equal and inalienable
natural rights, among which are life, liberty, and the pursuit of happiness.”
K.S.A. 2014 Supp. 21-5419(b): “This section [Alexa’s Law] shall not apply
to: 	(1) Any act committed by the mother of the unborn child; (2) any
medical procedure, including abortion, performed by a physician or other
licensed medical professional at the request of the pregnant woman or her
legal guardian; or (3) the lawful dispensation or administration of lawfully
prescribed medication.”
K.S.A. 2014 Supp. 75-702: 	“The attorney general shall appear for the
state, and prosecute and defend any and all actions and proceedings, civil
or criminal, in the Kansas supreme court, the Kansas court of appeals and
in all federal courts, in which the state shall be interested or a party, and
shall, when so appearing, control the state’s prosecution or defense. . . .”
Your first question is:
“Based on Section 1 of the Kansas Bill of Rights and the Kansas courts
[sic] interpretation of the Kansas Bill of Rights, is sub section (b) of KSA
21-5419 constitutional?” [sic]
We are unaware of any Kansas court decisions that have interpreted Section 1 of the
Kansas Bill of Rights in a manner that would suggest that K.S.A. 2014 Supp. 21-5419(b)
might 	be 	unconstitutional. 	In 	general, 	the 	Legislature 	may 	be 	restricted 	by 	the
Constitution in what conduct it may make criminal, or in how it may go about doing so, 2
but we are aware of no authority holding that Section 1 of the Kansas Bill of Rights
compels the Legislature to make criminal any particular conduct. 	We are unaware of
any court decision interpreting Section 1 of the Kansas Bill of Rights to impose a duty
on the Legislature to enact statutes that subject any particular conduct to criminal
sanctions and do not believe such a case exists because “[t]he Legislature alone has
the authority to define crimes and prescribe punishments.” 3
We also would note that when confronted with equal protection challenges to statutes
similar to Alexa’s Law, courts in other states have held that equal protection principles
are not offended by similar statutory exceptions to criminal liability for the mother of the
unborn child. 4
2 See, e.g., State ex rel. Morrison v. Sebelius, 285 Kan. 875, 894 (2008) (statutes that offend
constitutional rights may be stricken).
3 State v. Todd, 299 Kan. 263, 276, cert. denied, 135 S.Ct. 460 (2014).
4 See, e.g., State v. Alfieri, 724 N.E.2d 477, 482 (Ohio Ct.App. 1998) (for equal protection purposes, a
criminal defendant who assaults a pregnant woman, causing the death of the unborn child she is carrying,
is not similarly situated to a pregnant woman who elects to have her pregnancy terminated by one legally
authorized to perform the act); State v. Benson, 822 N.W.2d 484, 488 (Wisc.Ct.App. 2012) (where the
defendant is not similarly situated to the pregnant woman, there is no equal protection violation from the
application of a statute which criminalizes a third-party’s acts against an unborn child but does not

Representative Garber
Page 3
We also considered whether similar provisions in the federal Constitution had been
interpreted in a manner that might by analogy be imputed to Section 1 of the Kansas Bill
of Rights. 	Section 1 of the Kansas Bill of Rights sometimes has been interpreted by
Kansas courts as imposing due process and equal protection requirements similar to,
though not identical to, those of the Fourteenth Amendment to the United States
Constitution. 5 	We are aware of no judicial authority holding that the Fourteenth
Amendment compels a state to prohibit, under threat of criminal sanction, the conduct
described in K.S.A. 2014 Supp. 21-5419(b) or prohibits on equal protection grounds
such a state enactment.6
The Kansas Supreme Court has clearly 	stated its approach to considering legal
challenges to the constitutionality of Kansas statutes:
Courts are only concerned with the legislative power to enact statutes, not
with the wisdom behind those enactments. 	Our standard of review is well
known. 	When 	a 	statute's 	constitutionality 	is 	attacked, 	the 	statute 	is
presumed constitutional and all doubts must be resolved in favor of its
validity. 	If 	there 	is 	any 	reasonable 	way 	to 	construe 	that 	statute 	as
constitutionally valid, this court has the authority and duty to do so.7
Consequently, we find no legal basis to conclude that K.S.A. 2014 Supp. 21-5419(b)
violates Section 1 of the Kansas Bill of Rights. 	We think a Kansas court would find the
Legislature had power to enact that statutory provision.
Your other question is:
“Based 	on 	Section 	75-702: 	Duties 	and 	responsibilities; 	authority 	to
prosecute, and your strongly held commitment to stand up for those who
can’t stand up for themselves, is the Kansas Attorney General responsible
to begin proceedings in the courts to clarify the constitutionality of sub
section (b) of KSA 21-5419 above?” [sic]
criminalize the acts of the mother of the unborn child.); Commonwealth v. Bullock, 913 A.2d 207, 215-16
(Pa. 2006) (maternal exception in Pennsylvania statute that was “plainly aimed at protecting fetal growth
and development from unlawful interference” satisfies rational basis scrutiny).
5 See, e.g., Henry v. Bauder, 213 Kan. 751, 752-53 (1974) (“The equal protection clause of the
Fourteenth Amendment to the United States Constitution finds its counterpart in Sections 1 and 2 of the
Bill of Rights of the Kansas Constitution which declares in substance that ‘all men are possessed of equal
and inalienable natural rights, among which are life, liberty and the pursuit of happiness,’ and that ‘all free
governments . . . are instituted for the equal protection and benefit (of the people).’ While these two
provisions of our Bill of Rights declare a political truth, they are given much the same effect as the
clauses of the Fourteenth Amendment relating to due process and equal protection of the law.”).
6 There is, however, federal case law holding that the United States Constitution restricts the power of
states to criminalize certain conduct within the scope of K.S.A. 2014 Supp. 21-5419(b). See, e.g., Roe v.
Wade, 410 U.S. 113 (1973) (due process clause of the Fourteenth Amendment restricts state action);
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).
7 Miller v. Johnson, 295 Kan. 636, 646-47 (2012) (internal quotation marks and citations omitted).

Representative Garber
Page 4
As a general matter, one task of the Kansas Attorney General is to defend the laws
properly enacted by the Legislature against legal challenges brought against them. 8
The laws enacted by the Legislature are presumed to be constitutional. 9 	It is possible
that 	in 	rare 	situations 	a 	statute 	might 	be 	so 	plainly 	in 	violation 	of 	the 	Kansas
Constitution, federal law, or the United States Constitution that the Attorney General
would have a duty to uphold those higher legal authorities in conflict with Kansas
statute; however, for the reasons set forth in our response to your first question, the
Legislature’s enactment in K.S.A. 2014 Supp. 21-5419(b) does not present one of those
rare situations. 	Therefore, the presumed responsibility of the Attorney General under
K.S.A. 2014 Supp. 75-702 would be to defend the constitutionality of the Legislature’s
enactment in K.S.A. 2014 Supp. 21-5419(b) if ever it were attacked, not to initiate such
an attack upon a duly enacted Kansas statute that suffers from no clearly apparent
constitutional infirmity. 	Indeed, this office has successfully defended, and continues to
defend, the overall constitutionality of Alexa’s Law against legal attack by criminal
defendants who have been, or are being, prosecuted under its provisions. 10
Sincerely,
Derek Schmidt
Kansas Attorney General
Athena E. Andaya
Deputy Attorney General
DS:AA:sb
8 K.S.A. 2014 Supp. 75-702; See, e.g., K.S.A. 54-106 (prescribing oath of office of the attorney general).
9 Boatright v. Kansas Racing Commission, 251 Kan. 240, 243 (1992) (“It is axiomatic that a statute is
presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable
way to construe a statute as constitutionally valid, the court must do so. A statute must clearly violate the
constitution before it may be struck down.”); State v. Miller, 297 Kan. 516, 519 (2013).
10 See State v. Bollig, 14-CR-15 (District Court of Trego County, Kansas, filed February 25, 2014).