Act One: The Constitution
Worldlings anticipate a change in federal abortion law. Roe v. Wade is too fanciful to endure, as even its defenders recognize. While the children of light dream of overturning Roe, the children of this world plan the next move.
Upon Roe’s reversal, abortion will be governed by state law, and the Kansas Constitution is manifestly pro-life. The main problem for worldlings is Section 1 of the Bill of Rights: “Equal Rights: All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”
“Equal rights” means those identified have the same rights. “All men” includes all humans, and unborn children are obviously human. “Inalienable” rights cannot be lost, and “natural” rights inhere in the person without need for positive law. Hence under the plain meaning of Section 1, an inalienable natural right to life could not be taken from an unborn child, even if the life of the mother were at risk.[1] The worldlings must do something.
Act Two: The Case
Abortion doctors, Hodes & Nauser, MDs, file suit against the State of Kansas alleging a state abortion law violates the Kansas Constitution. The novel legal question is whether the state constitution addresses abortion. The State, represented by Republican attorney general Derek Schmidt, argues the constitution does not provide a right to abortion. The district court disagrees, and the State appeals.
The choice before Kansas Supreme Court is thus whether the constitution does not provide a right to abortion, the State’s position, or whether the constitution protects abortion, the doctors’ position. The Supreme Court is never presented with an argument that the constitution restricts or prohibits abortion. The State’s negative approach is presented by Republicans as a defense of life.
The Supreme Court rules in Hodes & Nauser MDs v. Schmidt that the constitution protects a natural right to abortion. Because it was not argued in briefing, the Court is not obliged to discuss the constitution’s reference to an “inalienable nature right[] . . . [to] life.” The Republicans express outrage at the result.
Act Three: The Amendment
The Republicans propose a constitutional amendment, the Value Them Both Amendment, to regulate abortion. The amendment’s text is impossibly confusing. If adopted, it would be interpreted by the Kansas Supreme Court, which has already held abortion is a natural right. The Court could easily construe it in a pro-abortion fashion.
The Catholic bishops of Kansas nevertheless endorse the amendment. They pour millions of dollars and the Church’s moral authority into the campaign. They never discuss or even identify the legal rationale for their action.
The amendment loses badly. The loss is consistently presented by the media, including Catholic media, as a loss for the pro-life side. The Republicans express regret.
Act Four: The Lost Cause
Even before the vote, a Kansas bishop says the amendment is a “once in a lifetime opportunity to determine the direction of our state when it comes to the life of the unborn.”[2] The bishop does not explain why Catholics will be deprived of further opportunities. About two years later, the same bishop says: “Ours was a noble attempt to pass a constitutional amendment reversing this decision, but that failed.”[3] The bishop does not explain why a noble attempt should be deemed to have failed rather than to have set the stage for more attempts. The Kansas bishops continue to oppose abortion, but they give no indication of support for another constitutional amendment.
Republicans generally do the same. Efforts to engage the subject are rebuffed. “We tried,” is the gist of most answers.
Some Republicans, however, introduce a new amendment which would clearly reverse the Supreme Court’s decision.[4] Without the support of Republican leadership, the resolution dies in committee. Catholic leaders take no notice of the new amendment.
Act Five: Life or Death
Some possibilities if abortion remains a state issue:
- Led by the Church, God’s grace opens the eyes of Kansans to the pro-life language of our constitution. Section 1 of the Bill of Rights is given effect as written or is amended to make its original language operative. Abortion is entirely banned, and Kansas is no longer an abortion destination.
- Natural virtue prevails with the inevitable admixture of evil. Like the United States Supreme Court in Roe, the overreach of the Kansas Supreme Court in Hodes & Nauser, MDs is eventually recognized. Laws regulating abortion are enforced in Kansas courts, and if these laws are sufficiently restrictive, Kansas is no longer an abortion destination.
- Evil prevails. Having held it natural to kill unborn children, the Kansas Supreme Court’s decision produces the natural result. The state itself dies, following the many children murdered here.
[1] For evidence this was on the mind of Kansas Supreme Court justices, consider the question placed to the attorney for the State of Kansas in Hodes & Nauser MDs v. Schmidt, Stephen McAllister, by Justice Dan Biles, at the 4:45 mark of the oral argument video. “Let me give you a hypothetical that’s been bugging me for months, quite honestly. A woman is told that she has to have an abortion in order to save her life. Does the Kansas Constitution allow the government to say she must die?” https://www.youtube.com/embed/3sPlvgEoCo8?autoplay=1&rel=0. The question is remarkable because the statute in question there explicitly provided an exception to protect the life of the mother, as had Kansas abortion law from territorial days. See K.S.A. 65-6743; https://www.ksrevisor.org/statutes/chapters/ch65/065_067_0043.html. Apparently Justice Biles was bothered by something in the text of the Kansas Constitution, and the Supreme Court’s opinion can be read as a point-by-point evisceration of Section 1 of the Bill of Rights.
[2] https://www.digitalcatholicadvance.org/Catholic-Advance-07012022-e-Edition/1/. Page 1.
[3] https://now.dirxion.com/Catholic_Advance/library/Catholic_Advance_05_03_2024.pdf#page=1&zoom=100. Page 7.
[4] https://kslegislature.org/li/b2023_24/measures/hcr5011/. This writer authored the operative language of the new amendment.