The Amendment-Language
According to the standard of review applied by the Kansas Supreme Court to legal enactments, the Court’s goal is to give effect to the intent of legislators or voters. The Court’s standard of review further holds that the best indication of such intent is the language of the enactment itself. Only on a secondary basis will the Court consider non-textual information such as the circumstances surrounding an enactment. Unfortunately, the language of the Amendment is confusing, an opinion perhaps shared by the Amendment’s proponents, who have largely avoided quoting it in their materials.
Independently of how the Kansas Supreme Court may handle the matter, the confusing language of the Amendment provides good reason for the public to consider information beyond the text. One must wonder, for example, about the person or persons who drafted the Amendment. This writer been unable to identify the author(s), and if any reader can do so, the information would be gratefully received via the email on the home page. Further, one could ask who the proponents of the Amendment are? What do the proponents say about the Amendment’s purpose? Is any other purpose discernable? These are planned subjects for further essays in this series.
For now, the language of the Amendment will be considered phrase by phrase. The key issue is how the Kansas Supreme Court would interpret that language. In our system of government, a constitution says whatever the interpreting court says. Abortion, for example, was not protected by the federal constitution, then it was, and now it is not again.
The Kansas legislature passed the Amendment without any change to its language, although several changes were offered. The resolution approving the Amendment included additional language which will appear on the ballot. Although the language specifically designated for the ballot is not part of the Amendment, it could be considered by the Kansas Supreme Court when interpreting the new constitutional provision, should it pass. The Amendment itself states:
“Regulation of abortion. Because Kansans value both women and children, the constitution of the state of Kansas does not require government funding of abortion and does not create or secure a right to abortion. To the extent permitted by the constitution of the United States, the people, through their elected state representatives and state senators, may pass laws regarding abortion, including, but not limited to, laws that account for circumstances of pregnancy resulting from rape or incest, or circumstances of necessity to save the life of the mother.”
“Regulation of abortion” The last essay noted that the title of an enactment is not controlling, but it is not nothing, either. This title indicates that the Amendment regulates abortion, and the language which will appear on the ballot along with the Amendment does the same: “A vote for the Value Them Both Amendment would affirm there is no Kansas constitutional right to abortion or to require the government funding of abortion [sic], and would reserve to the people of Kansas, through their elected state legislators, the right to pass laws to regulate abortion.” [Emphasis added.]
What is “regulation” of abortion, in the view of the Kansas Supreme Court? The Act at issue in Hodes & Nauser required the abortion doctor to kill the child before dismembering him or her. So far as this writer can tell, no step was eliminated from the procedure, but another step was added—causing the death by a means other than the dismemberment itself. So, was the Act a “regulation” of abortion?
In a passing remark late in the Hodes & Nauser opinion, the Court does call the Act a “regulation.” Slip op. at 74. At oral arguments, however, justices repeatedly referred to the Act as a “ban.” In its opinion, the Court also quotes the district court’s use of “ban.” Slip op. at 12. Further, the Court characterized the Act as a ban at the beginning of its factual statement:
“In 2015, the Kansas Legislature enacted S.B. 95, which is now codified at K.S.A. 65-6741 through 65-6749. S.B. 95 prohibits physicians from performing a specific abortion method referred to in medical terms as Dilation and Evacuation (D & E) except when “necessary to preserve the life of the pregnant woman” or to prevent a “substantial and irreversible physical impairment of a major bodily function of the pregnant woman.” K.S.A. 65-6743(a).” Slip op. at 8. [Emphasis added.]
Federal abortion law has distinguished between regulations and bans, with the former allowed but the latter prohibited in certain circumstances. See Gonzales v. Carhart, 550 U.S. 124, 146 (2007); MKB Management Corp. v. Stenehjem, 795 F.3d 768, 772 (2015); Bryant v. Woodall, 363 F.Supp.3d 611, 627-630 (2019). Federal law has changed since Dobbs, of course, but even there the United States Supreme Court seemed to maintain the distinction: “The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion.” 2022 WL 2276808, *43. [Emphasis added.]
The danger is evident. The Kansas Supreme Court could reason that since the Amendment refers to “regulation,” and since the official ballot explanation of the Amendment mentions “to regulate,” the Amendment goes only thus far. Then, as the Court has shown itself capable of doing, it could construe any modification of an abortion procedure or other substantial imposition on abortion as a “ban.” The Court could then say the Amendment did not contemplate such an action.
Now, the Amendment could be interpreted differently, but any competent attorney knows a court is not controlled by the force of the arguments before it. If someone other than the Kansas Supreme Court thinks “regulation” includes substantially restricting or even prohibiting abortion, that fact is entirely beside the point. A competent attorney would consider only how the proposed constitutional language might play before the Court. Given the language of Hodes & Nauser, the Amendment’s exclusive focus on regulation opens the door to litigation over whether abortion statutes are permitted “regulations” or impermissible “bans.”
“Because Kansans value both women and children” This is obviously prefatory language, and constitutional amendments sometimes contain prefaces. An example in the abortion context is a proposed amendment to the Kentucky constitution, which is superior to the Kansas Amendment in both brevity and clarity: “To protect human life, nothing in this Constitution shall be construed to secure or protect a right to abortion or require the funding of abortion.” [Emphasis added.] The purpose of the Kentucky amendment is very simply stated: “To protect human life.”
What, then, is the purpose of the Amendment in Kansas? Can one say the purpose is: “Because Kansans value both women and children”? No, because the phrase is not a purpose at all, but a motive. The Kansas Supreme Court is not told what the Kansas legislature and voters were trying to do, but rather what motivated them.
The problem is that the pro-abortion majority of the Kansas Supreme Court could just as heartily say they value both women and children. According to the Hodes & Nauser court, valuing women means giving them abortions. The Court called abortion a natural right, after all. And because the Court views abortion as a natural right, it must think abortion helps children as well (unless, of course, children are contrary to nature, a point the Court did not explicitly address). If anyone doubts this is the attitude of the Court, just read the Hodes & Nauser decision and, if possible, watch the oral arguments.
The Amendment’s prefatory language is therefore not helpful. “Well,” one can imagine the Court reasoning, “the preface says ‘value both women and children,’ and we know what that means: abortion.” The language is fundamentally emotive, and the Court simply has different emotions than do pro-life Kansans.
“the constitution of the state of Kansas does not require government funding of abortion” Clear enough, so far as it goes, but does the Kansas constitution require non-government actors to fund abortion, perhaps in private insurance plans? Compare this again the Kentucky language: “To protect human life, nothing in this Constitution shall be construed to secure or protect a right to abortion or require the funding of abortion.” [Emphasis added.] Why does the Kansas Amendment add the adjective “government” to the gerund “funding”? Why not just say the Kansas constitution “does not require the funding of abortion,” as pro-lifers managed to write in the Bluegrass State?
“and does not create or secure” “Create” suggests the right in question originates with the constitution; in other words, that it is a civil right but not a natural right. The Kansas Supreme Court made clear in Hodes & Nauser that it saw abortion as a natural right, so “create” does not reach the Court’s holding. Its inclusion here is not objectionable to the extent the inclusion might rule out further arguments on the point. But the inclusion could also be used to argue the Amendment does not address natural rights.
“Secure” is a much better word given the reasoning of Hodes & Nauser. Courts talk about “securing” natural rights, the notion being that the right already exists and law is put in place to make the right effective. A good example for present purposes is in the Declaration of Independence, the model for Sec. 1 of the Kansas Bill of Rights. Two sentences of the Declaration are quoted here to show how the parts work together:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” [Emphasis added.]
This famous conjunction of fundamental rights and “secure” shows the term’s superiority to “create,” but the term is still not satisfactory. The Kansas Supreme Court did not use “secure” in Hodes & Nauser, although the word did appear in a quote of an earlier case which quoted in turn the Declaration of Independence. When explaining Kansas law, the Court consistently said Sec. 1 of the Kansas Bill of Rights “protects” abortion, and it is unaccountable why the Amendment does not use the same verb. Even if the drafters of the Amendment had reason to prefer the complete construction, “create or secure,” a phrase sometimes used in civil rights law, competent attorneys usually add their preferred terms to existing usage rather than swap the terms. How hard would it have been to say the Kansas constitution does not “create, secure or protect” a right to abortion?
Remember, the Kansas Supreme Court is the body which could read the words from Sec. 1, “natural rights . . . to life, liberty, and the pursuit of happiness,” and think: “abortion.” It is not impossible such a body could say that while the Amendment means the Kansas constitution does not “secure” a right to abortion, abortion nevertheless remains available as a natural right. The Court could even rely on the lack of a textual reference to abortion in Sec. 1. “Sure,” the Court could reason, “Sec. 1 does not secure a right to abortion—it doesn’t even mention it. But it does protect abortion, as we established in Hodes & Nauser, because Sec. 1 protects natural rights, and the Amendment does not say otherwise.” If this seems incredible, then one is not sufficiently aware of the Court’s jurisprudence.
“a right to abortion.” Even more surprising than the Amendment’s omission of the verb “protects” as used in Hodes & Nauser, is its omission of the key word from that case, the adjective “natural.” The abortion right is a “natural” right, the Kansas Supreme Court explained over and over again. Competent attorneys would not omit the key word from a decision when drafting language to reverse that decision.
Of course, a reasonable person could respond that omitting the adjective actually broadens the noun. So, in this view, the Amendment’s use of “right” without modification would include all rights, natural or otherwise. But why require the Kansas Supreme Court to be reasonable? Why not make things clear?
Given the Amendment’s language is not clear, it is an invitation to read things another way. “Surely,” the Court might reason, “if the legislature’s intent was to reverse Hodes & Nauser, it would have said the Kansas constitution does not protect a natural right to abortion, our holding in that case. Since the legislature did not pass such language, and since the voters did not approve such language, we will not read the language into the Amendment.”
“To the extent permitted by the constitution of the United States” The very existence of a second sentence in the Amendment is confusing. Why, after saying the Kansas constitution does not create or secure a right to abortion, would the drafters of the Amendment go on? They either did not understand constitutional law, or they had objectives contrary to most pro-lifers.
The issues here are very complex, and time prohibits a full exploration of them. The most substantial issues will be dealt with when the successive phrases of the second sentence are considered. For now, the focus is on the opening phrase, “[t]o the extent permitted by the constitution of the United States.”
This phrase seems to be a trigger provision. These have been included in restrictive abortion statutes around the country to make clear the terms are enforceable only if allowed by federal law, i.e., if Roe falls. And this is the key point—the question with a state statute is never whether the legislature may enact the law, but whether the courts will enforce it. In 2010, for example, the Kansas legislature reenacted a law outlawing homosexual sodomy even though the United States Supreme Court had held in the 2003 Lawrence v. Texas decision that such laws are unconstitutional. Nothing stopped the legislature from acting contrary to a court’s holding, even the highest court of the land; so long as the legislators had the votes, they could pass whatever they wanted. This is the structure of our constitution.
The trigger laws in abortion statutes simply made clear that the law’s elements were effective only when enforceable in court. This forestalled litigation over whether the statute violated Roe. Only if Roe were gone could the statute be enforced, and then any violation of Roe would be moot.
But that is not what the rest of the Amendment’s second sentence does. The rest of the second sentence purports to empower the legislature to exercise its police powers, meaning those powers of general governance held by all states as opposed the enumerated powers of the federal government. This difficult issue of constitutional law will be explained below, but for now it should be understood that the first phrase of the second sentence could have a very ominous meaning. It seemingly subordinates the police powers of Kansas to the federal government, saying the state legislature can act only “[t]o the extent permitted by the constitution of the United States.” The point will be clearer once the remaining language of the second sentence is analyzed.
“the people, through their elected state representatives and state senators, may pass laws regarding abortion” Well, obviously. The Kansas legislature could pass laws regarding abortion, and in fact did so, long before the Amendment. This raises a question why the Amendment includes such language. The Kansas Supreme Court’s standard of review requires it to give effect to all language of an enactment, and forbids it from assuming any language is meaningless or superfluous. If the legislature could already act without this language, then what can the language possibly mean? This is an open invitation to the Court to get creative.
“including, but not limited to” The Amendment now tells the Kansas Supreme Court to be as creative as it wishes.
“laws that account for circumstances of pregnancy resulting from rape or incest” A digression on the distinction raised above, between a government of general jurisdiction which exercises police powers and a government of limited jurisdiction which exercises enumerated powers, is now necessary. The United States federal government was formed by the states, which had claimed sovereignty upon independence from England. The states thus held the “police powers,” which does not mean law enforcement only but rather the general authority to rule for the common good.
The states, however, did not want to substitute another centralized, national government for the one they had just fought for independence. The states therefore formed a federal government with only enumerated powers. The federal government, for example, could regulate interstate commerce, but not commerce within the states. The federal government had control of the postal service, but not every municipal utility. The states would retain their internal police powers, in other words, while the federal government would handle affairs common to all the states. That is the point of the Ninth Amendment to the United States Constitution, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” and the Tenth Amendment, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
This means that as the holder of police powers, the state of Kansas, acting through its legislature, already has authority to enact “laws that account for circumstances of pregnancy resulting from rape or incest.” The fact the Amendment purports to give the legislature this power is therefore confusing at best. The Kansas Supreme Court probably will assume the Kansas legislature understood constitutional law and thus look for another intent behind the Amendment’s language.
The import of the first phrase of the second sentence can now be addressed. Taken at face value, the Amendment means the federal government may take from Kansas the legislative power to pass laws regarding abortion; under the first sentence, the Kansas constitution does not include such a right, and under the second sentence, the power to legislate on the matter is controlled by the federal constitution. The second sentence is, in other words, a surrender of sovereignty to the federal government. Only if the federal constitution allows abortion legislation in Kansas may the legislature pass laws “including, but not limited to, laws that account for circumstances of pregnancy resulting from rape or incest.”
Admittedly, the reading just offered is very technical. It is unlikely a court would go so far. The fact the second sentence can be read this way, however, shows the poor draftsmanship of the Amendment generally. The confusion is inexcusable.
A much more likely reading of the passage regarding rape and incest, and the following passage regarding the life of the mother, is that they establish constitutional standards in Kansas for abortion legislation. Reading the second sentence together, the Kansas Supreme Court would probably conclude that while the legislature need not regulate abortion—the language is, “may pass laws regarding abortion” [emphasis added]—whenever the legislature does so, its enactment must “account for circumstances of pregnancy resulting from rape or incest,” or it will not be enforceable as contrary to the constitutional standards set out by the Amendment.
The Amendment is thus a Trojan horse for abortion. Although the existing Kansas constitution does not explicitly mention abortion and arguably prohibits it, as explained in an earlier essay, the constitution would now explicitly protect abortion. Whatever the legislature might try after the Amendment, it would have to “account for circumstances of pregnancy resulting from rape or incest.” The fact the proponents of the Amendment may not see it that way is irrelevant. The Kansas Supreme Court must do something with the second sentence, and given the unaccountably confusing nature of its language, the result predicted here is the most likely.
Nor is that all. As already noted, the “constitutional standard” interpretation of the Amendment would be open ended. The Amendment says its provisions are “including, but not limited to,” and obviously the Kansas Supreme Court would feel itself called fill the gap. “What other constitutional standards,” the Court could ask itself, “must be applied here”? That will turn on what the Court values, not on what the people who support the Amendment value, which is a really stupid approach for pro-lifers to take.
“or circumstances of necessity to save the life of the mother.” The Kansas Supreme Court will most likely read this as the second specified constitutional standard for abortion legislation in Kansas. Whatever the legislature does, it cannot endanger the life of the mother. And in the eyes of the Court, almost anything could endanger the life of the mother.
Just read Hodes & Nauser to see how low the danger threshold is for the Court. The named abortion doctors were willing to testify that any delay needed to kill the child before dismembering him or her would threaten the mother, and the Court reacted with indignation at the very thought. Watch also Justice Biles’ first question to the State’s attorney at oral arguments; the hostility to the notion that women naturally face danger in pregnancy is palpable. Our elites, almost all of whom accept abortion to some degree, reject as fundamentally intolerable any threat to the life of the mother during pregnancy. This is a philosophical position of great intensity. The notion that women must face threats in pregnancy if society is to continue is as intolerable to them as the notion that old people must face threats from respiratory viruses if society is to continue. The related position that a woman cannot licitly kill an unborn child to avoid such a threat is similarly beyond their comprehension. The individualism of our age is making the continuation of the human species intolerable to those calling the shots.
And, on an equally philosophical plane, the second sentence of the Amendment assumes that the legislature has jurisdiction over unborn human life. The legislature may, or even must, allow abortion under certain circumstances. The Catholic view, of course, is that the government lacks all jurisdiction over innocent human life. Why the Amendment goes on to make such points, when it could have stopped after the first sentence, is very difficult from a Catholic perspective.
This analysis raises serious questions about the people behind the Amendment. Their identity is not as clear as one might assume. A future essay will hopefully address that concern.