The Situation
On August 2, 2022, less than two months from this writing, Kansas voters will consider an amendment to the state’s constitution. Called the “Value Them Both Amendment” (hereinafter “Amendment”), the proposed language is supported by many of the state’s pro-life forces, including its Catholic bishops. The Amendment is, however, a potential Trojan horse for abortion rights. Once brought within the walls of the constitution, hidden pro-abortion forces may emerge, contrary to the expectations of many who support the “Vote Yes” campaign.
This writer had assumed he would vote for the Amendment, but when he finally examined its language, he realized based on his legal training and experience the threat it posed. After an essay on the Amendment was rejected by a Catholic website, further reflection suggested to him that most anything along the same lines could be rejected. The forces supporting the Amendment are too prestigious, and the arguments against their support too abstruse, to deal with in a typical article.
Hence this website. Only here is it possible hurriedly to put online some issues with the Amendment. That will not be the sole purpose of the website; this writer has thought of establishing his own forum for some time, and the Amendment is a prompt to get it done.
The essays on the Amendment unfortunately will not provide many citations or links to sources. Time is of the essence. But the issues are sufficiently set out that an informed reader should be able to find the underlying sources if desired.
The United States Supreme Court issued Roe v. Wade and Doe v. Bolton in 1973. These established a right to abortion pursuant the United States Constitution, and under that document’s supremacy clause, abortion became protected nationwide. For more than 40 years, Kansas appellate courts did not look to constitutional law other than Roe, Doe and their progeny when deciding abortion rights.
Abortion flourished in Kansas under federal protection. The state became a late-term abortion destination. When pro-life forces turned to civil disobedience in Wichita during 1991’s Summer of Mercy, federal marshals enforced court orders by pushing through human blockades to reopen access.
As already indicated, the state’s appellate courts obediently followed the federal lead. A criminal defendant from the Summer of Mercy argued her action was necessary to protect human life, but the Kansas Supreme Court rejected the defense with a statement which must always provoke wonder—”evidence of when life begins is irrelevant.” City of Wichita v. Tilson, 253 Kan. 285, 296 (1993). Such is the power of the federal courts.
Following the 1992 United States Supreme Court decision in Casey v. Planned Parenthood of Pennsylvania, both federal and state courts barred enforcement of any Kansas statute which placed an “undue burden” on access to abortion. The Kansas legislators were eventually so reduced by these impositions that they could only hope to soften the barbarity of the practice.
Thus in 2015, the Kansas legislature passed and Governor Brownback signed the Kansas Unborn Child Protection from Dismemberment Abortion Act (hereinafter “Act”), K.S.A. 65-6741 et seq. With a temerity unacceptable to most legal elites, the political branches dared to say that if a doctor intends to pull an unborn child apart during the second trimester of pregnancy, he or she cannot do so while the child is still alive. Death by rack, banned centuries ago for adults, was now prohibited for unborn children as well. Unless killing the baby by dismemberment was necessary to save the life of the mother or prevent serious bodily harm to her—then death by rack was back. And, of course, “her” means here only the mother and not any daughter so slaughtered.
Two Johnson County abortion providers, Drs. Hodes and Nauser, sued in state district court. The doctors, however, did not plead federal law. Instead, they argued the act was contrary to the Kansas constitution. The rulings of the state courts in this litigation will be considered next.