The Future
The Amendment lost for both good and bad reasons. The good reasons: 1) the Amendment’s confusing language, which was off-putting in a constitutional provision; 2) the fact the Amendment seemed to prohibit significant restrictions on abortion, which many Kansans want; and 3) the repeated appeals to emotion and authority by the Amendment’s proponents, which diminished their credibility. The bad reasons: 1) some people like abortion; and 2) some people associate religion and/or morality with oppression. Pro-lifers should be heartened that the same remedy may be applied in both instances—better arguments supported by prayer and sacrifice.
Confusing language: Perhaps the most astonishing thing about the Amendment is the lack of legal talent associated with it. So far as this writer can judge, no Kansas lawyer testified as a proponent at the legislative hearing on January 15, 2021. Brittany Jones was admitted to the Kansas bar after she had testified, and she appears to work mostly as a political operative, not as a practicing attorney. Elizabeth Kirk has never been admitted in Kansas and, it appears, has not practiced law for more than 20 years. Where were the Kansas lawyers?
This writer cannot answer that question with certainty, but he can offer some relevant testimony. Beginning in 2016, he repeatedly offered his help to the pro-life political class of this state. He was repeatedly rejected, leaving the subjective impression, at least, that the political class did not really want to fight abortion. This writer will not identify those to whom he applied because he does not know their intent; they may have declined his offer for different and sufficient reasons! But the fact remains that when he tried to get involved, he was held at arm’s length.
This writer has not yet communicated with other lawyers about their experiences, but he has heard from numerous pro-lifers who dissented from the Amendment. Their stories are nearly always the same—because they wish to ban abortion, they are rejected by the pro-life establishment of Kansas. True believers are not welcome, apparently.
The point is important because no true believer who understood Kansas law could have supported the Amendment. A true believer who understood the law would naturally oppose the Amendment. If that were understood by the Amendment’s proponents, it would in turn explain why no such lawyers were used in the making of this film.
The proper response is to hold a convention of pro-life Kansas lawyers to draft another constitutional amendment. Pro-abortion forces will use the failure of the Amendment to discourage pro-lifers. “See,” they are already saying, “Kansans support abortion.” Pro-lifers need to get back in the saddle and propose an amendment which makes sense. Lawyers holding a Kansas license who would like to support such a convention may contact this writer via the email found at the foot of this page.
Prohibiting significant restrictions on abortion: An unknown number of pro-lifers, including this writer, voted “no” on the Amendment because it appeared to prohibit significant restrictions on abortion. The “no” vote was high even in rural counties, suggesting this may have been a widespread concern. Pro-lifers should not consider what the media said about the Amendment, but what the Amendment itself said—it almost certainly prohibited the banning of abortion, and it apparently went much further, freezing in place abortion law current before Hodes & Nauser. That is what the voters saw in the voting booths on August 2, 2022, and they decisively rejected it.
Any new amendment should first do no harm. It should not limit the degree to which abortion is restricted in this state. The pro-abortion forces will undoubtedly howl, demanding to know in advance what the legislature will do. But that is not the nature of legislation. Legislators are not bound once in session, even by prior legislation.
Pro-lifers should of course be honest. We want to ban abortion. But we should also be realists. We know the legislative process will probably end in a compromise of some sort, for now. Our goal remains abolition, and the concerted effort by the proponents of the Amendment to hide that fact is discredited by the failure of their approach.
Appeals to emotion and authority: This writer has already set out his opinion of the campaign for the Amendment. The alternative is a more educational campaign. What, for example, does a proposed constitutional amendment say? Why does it say that? What is wrong with abortion, anyway? Think how little the Value Them Both campaign addressed these questions.
We are not arguing for today only. This debate will never end. Consider human slavery, for example—is that argument really over? Did slavery leave the earth with passage of the Thirteenth Amendment to the United States Constitution? No, it did not, and other forms of slavery are always creeping in. It is not difficult, in fact, to see much of recent decades as a slow return to slavery, which unfortunately is the default position for humanity.
Abortion is the same. The abortion debate did not end after the United States Supreme Court’s pro-abortion decision in Roe v. Wade any more than the slavery debate ended after the Court’s pro-slavery decision in Dred Scott v. Sandford. Indeed, civil society can be defined, according to Fr. John Courtney Murray, S.J., as “men locked together in argument.” The unacceptable alternatives are barbarism, which is rule by violence, and totalitarianism, which is rule by enforced silence. We must argue to maintain our free society, and our argument should include the reasons to ban abortion.
So, let’s have an educational campaign. If we draft an amendment that can be understood, then we can explain it. If we know why we want to ban abortion, we can explain that too. If we are too scared to do any of this, we have abandoned society to irrational forces, and the game is up. Our approach must be based in reason—a reason which, because it comes from God, is in no way contrary to Revelation.
People who like abortion: Fr. David Nix recently wrote a blog post about the limits of reason in the abortion debate. He points out that the effects of original sin and diabolical influence make rational argument on abortion very difficult. He does not suggest we abandon rational argument, but he does emphasize that without a broader evangelization of the world for Christ, reason alone will not work.
This writer agrees with Fr. Nix. The point here is not that reason alone is sufficient, but rather that reason must provide the content of our arguments. This content–what we ask people to accept– must be more than appeals to emotion or authority. We must give people reasons to amend the constitution, and then pray and sacrifice that they do so.
These reasons could include:
-The Kansas constitution does not mention “abortion,” but it does mention a “natural right” to “life.” The Kansas Supreme Court therefore tipped the scales of justice when it inserted a right to abortion into the state constitution. The people of Kansas have a corresponding right to remove the Court’s judicial bias from our laws.
-Whatever one thinks of abortion, calling it “natural” is dangerous. If it is natural to kill children, nothing protects us. It would then be natural for the strong to kill the weak throughout society.
-Ultimately, the question is whether one human should have total power over another, including the power to take life. The supporters of slavery made such demands early in Kansas history, and the supporters of abortion do today. But the government is not God, so it does not have that power and cannot give it to anyone.
People who associate religion and/or morality with oppression: Here is another place for good arguments backed by prayer and sacrifice. This writer suggests that choosing among permissible political and legal arguments is primarily a task for the laity, and that bishops and priests should focus on prayer and sacrifice, tasks for which their calling, education, and ordination particularly fit them.
“But the laity, by their very vocation, seek the kingdom of God by engaging in temporal affairs and by ordering them according to the plan of God. They live in the world, that is, in each and in all of the secular professions and occupations. They live in the ordinary circumstances of family and social life, from which the very web of their existence is woven. They are called there by God that by exercising their proper function and led by the spirit of the Gospel they may work for the sanctification of the world from within as a leaven. In this way they may make Christ known to others, especially by the testimony of a life resplendent in faith, hope and charity. Therefore, since they are tightly bound up in all types of temporal affairs it is their special task to order and to throw light upon these affairs in such a way that they may come into being and then continually increase according to Christ to the praise of the Creator and the Redeemer.” Lumen gentium, art. 31