The Amendment-Background
Since the United States Supreme Court has ruled in Dobbs v. Jackson Women’s Health Organization that the federal constitution does not protect abortion, the Kansas constitution takes on greater significance. The state constitution is the highest state law, and abortion is now a matter of state law. Given the Amendment changes the Kansas constitution, the pertinent question is in what way?
These matters are always complicated, and the best place to start is with the existing language of the state’s constitution. Here are the opening words of the first sentence: “We, the people of Kansas, grateful to Almighty God for our civil and religious privileges, in order to insure the full enjoyment of our rights as American citizens, do ordain and establish this constitution of the state of Kansas . . . .” Preamble.
Notably, the state constitution explicitly invokes God and thanks Him for free government—”our civil and religious privileges.” A couple things may be mentioned here.
First, this is in distinction to the federal constitution, which does not mention God. State constitutions, it is well-recognized, may provide more protection than does the federal constitution. Acknowledging an “Almighty God” as the source of free government is a significant legal act, especially considering the historical circumstances surrounding the Kansas constitution, i.e., the “Bleeding Kansas” conflict over whether this state would be slave or free. The Wyandotte constitution, as the Kansas constitution is named based on the location of the convention, is a free-state document. There were also pro-slavery conventions, and the convention assembled at Wyandotte in 1859 arguably wanted to ground human liberty on something more substantial than popular sovereignty, which had come so close to making Kansas a slave state.
Second, the invocation of God as the source of free government assumes the government’s power comes from God. In other words, it assumes the government’s power is limited. Only a government which obtains its power from people can be unlimited: such a government can do whatever the people who run it say, even impose slavery, which again the pro-slavery forces in Kansas had nearly done. Where a government’s power comes from God, however, its power can be exercised only on His terms, which, as the Wyandotte convention believed, excluded slavery. See Kan. Cont. Bill of Rights Sec. 6.
The Wyandotte convention was not satisfied with merely outlawing slavery, however. Immediately after the preamble, the convention began the text of the constitution with a Bill of Rights, the first section of which was quoted in an earlier essay: “Equal Rights. All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.” The sections of this language will be considered in turn.
“Equal Rights” The title of a legal provision does not control its meaning, but this title raises a question whether the section provides equal rights protection only, or also substantive due process protection. Equal rights simply means the government must treat similarly-situated people equally. Substantive due process means the government may not do certain things even if the proper rules were followed in making the law; in other words, even if the process was correct, the result itself may be unconstitutional if it violates a substantive right. Examples include laws which banned the teaching of German or banned interracial marriages. The United States Supreme Court held these were violations of substantive rights and ordered courts not to enforce the statutes as unconstitutional.
Roe held abortion was a substantive right, and if Sec. 1 of the Kansas Bill of Rights were read to provide substantive rights, then (prior to the Dobbs case), Sec. 1 would probably also protect abortion. That was the doctors’ strategy in Hodes & Nauser, and the State (more or less) countered with the argument that the section protected only equal rights, not substantive rights. Or at least, that was how the Kansas Supreme Court characterized the State’s argument in its opinion. More accurately, the State’s position was that the Kansas constitution has nothing to say about abortion and therefore does not protect it.
The State therefore took an almost totally negative approach to Sec. 1. The State did not, for example, argue that Sec. 1 provides a substantive right to life, thereby banning abortion. In line with its strategy, the State also did not cite the Preamble language discussed above.
The Kansas Supreme Court was very skeptical of what it saw as the State’s argument that Sec. 1 provides no substantive protections. Lacking any contrary arguments from the State on the nature of the substantive rights at issue, once the Court decided the section does provide substantive protections, the case was effectively over. The Court never had to grapple with the issues raised above about the Preamble or the points raised below about the rest of Sec. 1. It just said Sec. 1 protects substantive rights and abortion is a substantive right.
“All men” This phrase received a surprising amount of attention in Hodes & Nauser at oral arguments and in the written opinion. Without any basis in linguistics or law, the Court fretted whether “men” as used by the framers meant adult males only, or also adult females. Notably, the Court neglected to consider whether children were part of the mix.
In any event, the Court informed the world in its decision that “men” did include women, a point too obvious to question in the first instance. Even today, “men” is defined as the plural of “man,” which a standard reference defines in entries 1a, 1b, and 1c to mean human beings. Of course, that would include children as well, once again a point the Court avoided.
There were several rhetorical advantages for the Court in this gender diversion, but one strategy may have been to avoid a pro-life argument. Some of the controversy about abortion since Roe has turned on whether unborn children are “persons” entitled to protection under the 14th Amendment to the United States Constitution. Pursuant to that amendment, no state may “deprive any person of life, liberty, or property, without due process of law.” This language is the basis for substantive due process review of state statutes. One approach pro-lifers have advocated is thus to define unborn children as “persons” under the 14th amendment, a position the United States Supreme Court rejected in Roe.
Importantly for the present case, Sec. 1 of the Kansas Bill of Rights does not mention “persons.” The word it uses is “men,” a very different term. “Person” is defined in some Western philosophy as a “rational substance,” and in this sense it is broader than “human” (Catholic theology would categorize angels as rational substances and therefore persons, and doctrine also refers to the “Persons” of the Sacred Trinity). But “person” is simultaneously narrower than “human” in the eyes of some (although not this writer). For example, philosophers have argued that unborn children cannot be persons because they lack reason. Some have even argued that infants and small children are not persons on the same basis. Focusing on “person,” which implies an active rationality, is thus a somewhat difficult position to defend.
By contrast, an unborn child is more easily seen as a human being. The child is undoubtedly human, because his or her parents are human. The child is also a distinct being, even if he or she is still dependent on the mother. The upshot is potentially devastating for the pro-abortion cause in Kansas—even if the substantive due process protections of the 14th amendment, “life, liberty, or property,” do not extend to unborn children because they are not “persons,” the substantive due process protections of Sec. 1, “life, liberty, and the pursuit of happiness,” may extend to unborn children because they are “men.”
Sadly, however, none of this was argued to the Kansas Supreme Court. The State’s negative approach prevented it.
“equal and inalienable natural rights” The Kansas Supreme Court needed a way to distinguish the Kansas constitution from the United States constitution. As already explained, the entire point of the litigation was to establish a right to abortion in Kansas distinct from the federal right. The United States constitution does not talk about “natural” rights, and this was the distinction the Kansas Supreme Court needed.
The fact the parties had not argued natural rights did not hinder the Court, as discussed in a prior essay. The Court went right to the word “natural” in Sec. 1 and hung its legal analysis on the term. There is no more important word in the Hodes & Nauser decision than “natural.”
Once again, however, the substantive analysis could run the other way. Nature would include biology, and the biology is quite clear. As the Catholic novelist Walker Percy pointed out years ago (and his training was in medicine), once conception occurs a child will be born, grow to adulthood, and die of old age unless injury or disease intervenes. Abortion is simply a fatal injury to an unborn child, so to link “nature” and abortion, as the Court did, is a very strange thing.
Thus the State could have argued that “natural” rights include a right to life. Apart from a passing reference in oral arguments, the State did not do so. The omission fit the State’s negative approach, but it is nevertheless astonishing given the very next words of Sec. 1.
“among which are life, liberty, and the pursuit of happiness.” Because the State did not argue that the Kansas constitution protects a right to life, the Kansas Supreme Court did not have to deal with the explicit mention in Sec. 1 of a right to “life.” Could the Court have held an unborn child is not alive? That would seem impossible given biology.
But the State did not make the point. Moreover, for those who do not know, parties are free to argue in the alternative. The State did not have to chose between a position that the constitution does not address abortion and a position that it provides a substantive right to life. The State could have argued the constitution is silent on abortion and, in the alternative, to the extent it says anything at all, Sec. 1 provides a substantive right to life. Ideally, the State would have reversed this order, insisting first that Sec. 1 provides a substantive right to life, and then, in the alternative, the constitution is at most silent on abortion. By failing to argue in the alternative, the State bid against itself.
All of this may seem like water under the bridge, but arguments not made in a case can, in some circumstances, be raised in another case. The mere fact the State did not argue for a substantive right to life in Sec. 1 would not, as a technical matter, rule out that argument in a future case. In Hodes & Nauser, for example, the Court relied on the fact that parties to its earlier Sec. 1 cases had not argued for a substantive right to abortion to explain why the Court had never found such a right.
What would rule out a substantive right to life, however, is an amendment to the Kansas constitution which, contrary to Sec. 1, presumes a right to abortion. Some language in the Amendment is very troubling in that regard. The danger is that the Amendment will actually enshrine abortion in the Kansas constitution, a possibility which is considered next.