This is the first entry in a series, “Things They Wouldn’t Publish.” The essay was unsuccessfully submitted on May 5, 2022, to a Catholic website. It outlines this writer’s view of the Value Them Both Amendment. The complexity of the argument, especially in the second half of the essay, shows why this website was necessary, as discussed in a preface to the first essay in the series, “Is the Value Them Both Amendment a Trojan Horse for Abortion?”
According to the Catechism of the Catholic Church: “Direct abortion, that is to say, abortion willed either as an end or a means, is gravely contrary to the moral law.” In Kansas, however, the state’s bishops are supporting an amendment to the state constitution which arguably protects certain abortions. If the proposed amendment has that effect, a serious moral issue faces Catholics eligible to vote in the election on August 2, 2022.
The proposed amendment, known as the “Value Them Both Amendment,” adds a new section to the Kansas Bill of Rights:
“§ 22. 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.”
The language of the proposed amendment is strange. To take one example, the opening phrase is more emotive than prescriptive, establishing what Kansans “value” as opposed to the aim or purpose of the amendment. For that, one has to go to the website promoting the proposed amendment: “A recent Kansas Supreme Court ruling removed the legal foundation for all existing laws that permit basic regulations on abortion. Value Them Both simply allows for these existing laws to be protected.”
The recent Kansas Supreme Court ruling was Hodes & Nauser v. Schmidt. Although the Kansas constitution does not mention “abortion,” the Court held a provision in section 1 of the Kansas Bill of Rights regarding “natural rights,”
“protects all Kansans’ natural right of personal autonomy, which includes the right 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.”
Surprisingly, the proposed amendment does not directly negative Hodes & Nauser. Although the Kansas Supreme Court ruled based on a natural right to personal autonomy, and by derivation a natural right to abortion, the proposed amendment does not address natural rights. The proposed amendment says the Kansas constitution “does not create or secure a right to abortion,” but a natural right is not created by a constitution—it already exists. The word “secure” is stronger, and Hodes & Nauser does quote a prior Kansas Supreme Court opinion which stated that governments are instituted to “secure” certain “unalienable rights.” But even if the proposed amendment were read to mean the Kansas constitution does not secure a natural right to abortion, the amendment does not deny such a right exists.
Instead, the proposed amendment seems to presume a natural right to abortion. By its own terms, it only regulates abortion. Abortion, the proposed amendment seems to say, just needs government oversite. Thus women and children are valued—they get protection from what would otherwise be an unregulated abortion industry.
For example, the website promoting the amendment identifies a need for “Safe Clinics,” calling for “[b]asic regulations for sanitation, sterilization, and safety that all health facilities follow.” It also addresses “Doctors,” advocating for a “[r]equirement that abortions be performed by a medical doctor with hospital admitting privledges [sic].” It further calls for “Education,” specifically “[r]equirements to inform women of the physical and emotional implications of abortion.”
The proposed amendment even specifies areas where the regulation of abortion presumably gives way to its provision: “circumstances of pregnancy resulting from rape or incest, or circumstances of necessity to save the life of the mother.” The proposed amendment thereby seems to assume certain abortions will be provided, a reading supported by the website, which when answering a question about “hard cases,” states: “This amendment does not change any current laws regarding abortion in Kansas — especially in cases regarding rape or other difficult circumstances.”
In addition, although a complete legal analysis is beyond the scope of this essay, the proposed amendment’s provision for abortion in cases of rape, incest, and threats to the mother’s life could become a constitutional standard. To ensure both women and children are valued, the Kansas Supreme Court might conclude that legislation on abortion must include such protections—why else, the Court could reason, would the amendment mention them? And, of course, the Court would probably decide that the extent of the new constitutional standard is entirely within its purview.
Considered all together, the proposed amendment seems at best to establish a regime where abortion is safe, legal and rare. This is a worldly view of abortion, not a Catholic one. Under what circumstances, if any, can a Catholic vote for such an amendment?
The standard analysis was summarized by Pope John Paul II in his encyclical Evangelium Vitae.
“A particular problem of conscience can arise in cases where a legislative vote would be decisive for the passage of a more restrictive law, aimed at limiting the number of authorized abortions, in place of a more permissive law already passed or ready to be voted on. . . . In a case like the one just mentioned, when it is not possible to overturn or completely abrogate a pro-abortion law, an elected official, whose absolute personal opposition to procured abortion was well known, could licitly support proposals aimed at limiting the harm done by such a law and at lessening its negative consequences at the level of general opinion and public morality. This does not in fact represent an illicit cooperation with an unjust law, but rather a legitimate and proper attempt to limit its evil aspects.”
The pope was addressing here a legislator voting on a statute, not a citizen voting on a constitutional amendment. The distinction is not important in some ways, but it is very important in another. An illustration will probably show the point.
Imagine a hypothetical amendment which read: “The constitution of this state does not recognize or protect a natural right to abortion.” This language would directly negative Hodes & Nauser, leaving Kansas statutory law precisely where it was before the decision—the stated goal of the proposed amendment. More importantly, the hypothetical amendment would not enshrine abortion in the Kansas constitution as the proposed amendment may in practice do.
Once again, the text of the existing Kansas constitution does not mention “abortion.” It would take a constitutional amendment to do that, and the proposed amendment unfortunately does so in a way consistent with the abortion laws in place before Hodes & Nauser, when over 6,700 surgical abortions were performed in Kansas each year.
Returning now to Pope John Paul II’s analysis, the distinction between legislators voting on a statute and citizens voting on a constitutional amendment can be stated. Constitutionally speaking, a legislature may vote on whatever it wants. If the votes are there, no one can stop a legislature from enacting a statute.
The question at the constitutional level is instead what the courts will enforce. If the Kansas legislature were to enact a law restricting or banning abortion, the hypothetical amendment probably would not support judicial review. The proposed amendment probably would support judicial review, however, possibly under the terms already indicated. A court could ask: Does the new law value both women and children? Does it provide for abortion in cases of rape or incest? Does it provide for abortion to protect the mother’s life? If not, then a court might refuse to enforce the statute.
So, can a Catholic morally vote for the proposed amendment to the Kansas constitution? The people who brought the proposed amendment thus far presumably believed it was best they could do. But that judgment appears to be an open question, especially by the time of election, when Kansans should know the United State Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization.
If the United States Supreme Court reverses Roe v. Wade and its progeny, the abortion issue presumably returns to the states. And given how conservative Kansas is, could a Catholic voter accept that the laws in place before Hodes & Nauser are the best we can do? Just as the Catholic legislator in Pope John Paul II’s example should vote for a viable statute imposing the greatest possible restriction on abortion, so it seems a Catholic citizen should vote for a viable constitutional amendment imposing the greatest possible restriction on abortion.
Quite simply, the proposed amendment may not pass that test. One could even imagine abortion supporters voting for the proposed amendment on August 2, 2022. The status quo ante might look pretty good to them by then. If so, then a yes vote on the proposed amendment would be in effect a vote for abortion, not against.