This case involved a challenge to the then-existing abortion statute. The defendant claimed that abortion should be regulated by “natural law”. The defense then takes an interesting twist: if it is a matter of “natural law” it should not be a matter of statute. Rather than “natural law” requiring the protection of life, natural law should permit abortion (under the guise of individual autonomy and health care):

The statute under which appellants were accused is section 274 of the Penal Code. Appellants in effect contend that the care of one’s corporeal tenement concerns no one but himself; that the forceful withdrawal of a fetus from the womb of a woman is a matter which should be governed by ‘natural law ‘ and not by an artificial statute rudely conceived by man for the purpose of interfering with and controlling the conduct of society and the individuals who compose it. Under American jurisprudence the State has but little to say as to the manner of a person’s care of his body. He is restricted in his movements when stricken with a contagious or communicable disease. Otherwise, he is free to go unshaved, unshod or unbathed. In such matters his behavior is deemed not to affect the welfare of society. But as to the interference with a woman’s natural process of procreation, the whole of society asserts a protest. The State confides to its legislature the power and discretion to enact statutes for the purpose of conserving the race even in the stream of gestation.

People v. Gallardo (1952) 243 P.2d 532, 535

The court could have turned the argument on its head: natural law abhors the killing of one’s own child. Instead, the court rejected the existence of natural law:

The realm of statecraft acknowledges no such thing as a ‘natural law .’ While certain proposed laws have been in the midst of crises so designated, such terms were then plausibly applied in the orator’s zeal to achieve his aim of enacting a law which he deemed sacred. Indeed, the principles embodied in the Bill of Rights are so allied to the happiness and freedom of people as to persuade many men to believe they were the direct gift of the Deity. Not so. They are the products of the human brain after a long travail of freedom. Had they not been conceived we would still have had a social order, a state.

People v. Gallardo (1952) 243 P.2d 532, 535. This court thus anchors human rights as whims of the State. To call something natural law is a mere rhetorical flourish. To anchor these right “as products of the human brain” mean that the rights have no real existence beyond the arbitrary grant of power. The court goes onto say that the loss of these rights is thus perfectly conceivable: “Had they not been conceived we would still have had a social order, a state.”

On this logic, what evil is there in slavery? The majority population could deprive a minority of its “rights” — wait, the minority has no rights unless they have been acknowledged by the state. Murder would disrupt the entire social order; but the utter degradation of a minority could not damage the overall social order. 

A people is not restricted in the establishment of rules and laws for the welfare of the mass to any greater extent than in legislating for the individual. When they impose limitations upon society for the general welfare their acts are not to be thwarted by those rebellious agencies who deny the existence of the right of the people to regulate and govern themselves. The state is the paramount creation of man. It derives from the family. The evolutionary processes by which it evolved afford no basis for discount of the power and the obligation of the modern state to discipline, preserve and perpetuate the race. It has supplanted the tribe and the clan and succeeded to all the privileges and duties of the family. Either through a monarch, a dictator or a legislature, the modern state maintains the office of the patriarch who had succeeded to the functions of the primae val father to prescribe rules and to regulate and administer family affairs. Laws created by its lawmakers have the absolute control of society except to the extent abridged by its organic law.

People v. Gallardo (1952) 243 P.2d 532, 535-36 (emphasis added). Restrictions on abortion are permissible, because the State has that power. Thus, if the State determines that such protections are not given, there is no court of appeal in reason or morality. 

This is really breath-taking language. It is unabashed idolatry of the State. That argument was referenced in a 2019 decision Kansas which found a pre-political natural right of the woman to autonomy which includes abortion:

We conclude that, through the language in section 1, the state’s founders acknowledged that the people had rights that preexisted the formation of the Kansas government. There they listed several of these natural, inalienable rights—deliberately choosing language of the Declaration of Independence by a vote of 42 to 6.

Included in that limited category is the right of personal autonomy, which includes the ability to control one’s own body, to assert bodily integrity, and to exercise self-determination. This right allows a woman to make her own decisions regarding her body, health, family formation, and family life—decisions that can include whether to continue a pregnancy. Although not absolute, this right is fundamental. Accordingly, the State is prohibited from restricting this right unless it is doing so to further a compelling government interest and in a way that is narrowly tailored to that interest. And we thus join many other states’ supreme courts that recognize a similar right under their particular constitutions.

Hodes & Nauser, MDS, P.A. v. Schmidt (Kan. 2019) 440 P.3d 461, 466. The Court then used this “natural right” to validate an injunction prohibiting the restriction on abortion passed by the people of Kansas.

The dissenting Justice looked to Gallardo and argues that the majority has taken on the unlimited state power exalted by Gallarado

Tellingly, today’s majority shares its government-first assumptions with many courts that have considered challenges to state abortion restrictions under state constitutions. After all, most modern jurisprudence on abortion regulation shares the majority’s underlying assumption that the scope of the state’s police power is unlimited unless expressly constrained by a constitutional provision. This explains the fierce contest to locate a specific “right to abortion” somewhere in the organic law—whether it be federal or state.

Consider the California Second District Court of Appeal’s decision in People v. Gallardo , 243 P.2d 532 (Cal. Dist. Ct. App. 1952), vacated 41 Cal. 2d 57, 257 P.2d 29 (1953). In Gallardo , the California court considered whether the state’s criminalization of abortion violated the ” ‘natural law’ ” right to “the care of one’s corporeal tenement.” 243 P.2d at 535. But, the court said, “The realm of statecraft acknowledges no such thing as ‘natural law.’ ” 243 P.2d at 535. “[M]any men,” the court mocked, have become “persuade[d] … to believe” that “the principles embodied in the Bill of Rights are so allied to the happiness and freedom of people” that they must be “the direct gift of the Deity.” 243 P.2d at 535. To which the California court emphatically responded, “Not so.” 243 P.2d at 535. Rather, rights come from “[t]he state.” 243 P.2d at 535.

The Gallardo court then rhapsodized about the state as “the paramount creation of man.” 243 P.2d at 535. “Either through a monarch, a dictator or a legislature” the state has “the absolute control of society except to the extent abridged by its organic law.” 243 P.2d at 536. Because the California court had not yet achieved the judicial creativity and flexibility of today’s majority, it could find nothing in its organic law establishing a woman’s right to an abortion, so the state was free to regulate in any manner it saw fit. See 243 P.2d at 537.

Even though the Gallardo court and today’s majority desire different outcomes, both share a government-first understanding of the constitution arising from the belief that in the act of constituting a state, the people only retained a small chunk of expressly defined sovereignty for themselves, which was carved out of an otherwise universal grant of power to the state. This starting point naturally leads present-day political actors—including judges—to view the constitution primarily as a rights-granting document. This rights-oriented understanding of the constitution only magnifies the State and its near-limitless power. For the Gallardo court, the legislature was the “monarch” with near “absolute control” to dole rights out to the people as it saw fit. 243 P.2d at 536. For today’s majority, the State’s power is equally broad—and the Kansas Supreme Court has a similar absolute control to creatively find and grant specific, fundamental rights, mentioned nowhere in the Constitution, as a kind of benevolent judicial preferment.So even though results have varied dramatically, this basic assumption—government first, then rights—has become the standard framing in cases adjudicating constitutional rights. If a right cannot be “found” in some constitutional clause (or even a penumbra), then the state is free to act as it sees fit—however arbitrary its action may be. The pressure this puts on judges to be more creative and ambitious in their “search” for “fundamental rights” is largely to blame for the erosion of rigorous—and constrained—constitutional interpretation.

Hodes & Nauser, MDS, P.A. v. Schmidt (Kan. 2019) 440 P.3d 461, 538-39. 

All of these parties in actuality are arguing for some sort of “natural law.” They all have a presupposition as to what is right and permissible. The contention that the state has nearly unlimited positive law power is itself a proposition of “natural law” — even if it denies there is any God of nature. The argument from evolution is itself a sort of divine right argument. The majority in Kansas finds a “natural right” to “autonomy” which extends to abortion. The dissent says, you are merely using the rhetoric of “rights” to contend for an unlimited state.