Kansas Bombshell Shows Why State Constitutions Matter

The Kansas Supreme Court dropped a controversial 6-1 decision that overturned a state abortion restriction and cemented a right to abortion into the Kansas Constitution. This prevents Kansas from enacting any further abortion restrictions for the time being; however, there is still a way for the pro-life people of Kansas to find a way out of this situation.

Kansas Judicial Center building.

Kansas Judicial Center building. CC Image courtesy of A.D. Modlin on Flickr.

In 2015, Kansas passed a law banning Dilation and Evacuation abortions, otherwise known as D&E procedures or dismemberment abortions. The procedure is performed for most second trimester abortions, and this state law was among the first of its kind in the post-Roe era. After the law was struck down by a Kansas district court in 2015, the state appealed to the Kansas Court of Appeals, which issued a 7-7 split decision in 2016, failing to reach the majority necessary to overturn the lower court’s decision. The state of Kansas appealed once again, this time to the Kansas Supreme Court, which delivered a disappointing 6-1 decision to strike down the law.

The court’s decision was rooted in Section 1 of the Kansas Bill of Rights, which reads:

Equal rights. All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.

Section 1 of the Kansas Bill of Rights is similar to the Fifth Amendment of the U.S. Bill of Rights, which has often been interpreted to preserve “fundamental rights” such as the right to send your child to a Christian school and the right for schools to teach foreign languages.

However, this protection of unenumerated rights is a double-edged sword, as the Kansas Supreme Court ruled that the right to abortion was also a “fundamental” and “inalienable” right protected by Section 1 of the Kansas Bill of Rights. The court stated:

Section 1 of the Kansas Constitution Bill of Rights affords protection of the right of personal autonomy, which includes the ability 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.

As discussed in my recent article Pro-Choice Doesn’t Have to Mean Pro-Roe, the overturning of Roe v. Wade would allow all states to make their own abortion restrictions. Because of this decision from the Kansas Supreme Court, the state of Kansas would not be able to pass any additional abortion restrictions even if Roe was overturned, as the Kansas Supreme Court’s decision is binding within the state. Now, if Kansans want to nullify the court’s decision, they will need to pass an amendment to the Kansas Constitution protecting the right to life for unborn children.

Heartbeat Laws: What You Need to Know

Several states passed abortion restrictions in the last calendar year, and more are entertaining similar bills right now. Most of these laws, dubbed “heartbeat bills,” seek to restrict abortion after the fetus has a detectable heartbeat. All of these laws are in conflict with the holdings of Roe v. Wade and Planned Parenthood v. Casey, and the goal in passing most of them is to provide a test case to overturn Roe.

The “heartbeat bills” are generating a lot of press, and most people want to know what exactly the laws would do if they were allowed to stand. Unfortunately, there is a lot of misinformation and hyperbole circulating from deceitful or inaccurate sources. Our goal is to help you become informed about the contents of the laws in order to have accurate dialogue. Looking at the text of the laws and related state statutes and case law, we have compiled a reference table for you below:

Facts are as of 5/29/19

Footnotes:

  • (+) The goal of the heartbeat bill is to ban abortions after 6 weeks, but the requirement to test for a heartbeat opens the door for abortions potentially as late as 12 weeks because some ultrasound methods don’t detect a heartbeat as early.
  • * Missouri has backup bans at 14 weeks, 18 weeks, and 20 weeks in case earlier laws are stricken down.
  • ** Case law strongly indicates that women will not be held liable for criminal abortion in Georgia; the same case frowns upon investigating miscarriages. However, it is possible that women could be charged with some type of manslaughter because the law declares unborn humans with heartbeats to be natural persons.
  • *** A provision related to parental notification took effect immediately.

Roe’s Savior: The Equal Rights Amendment (ERA)

The Equal Rights Amendment is one of the most polarizing topics in American politics. Ostensibly, the purpose of the Equal Rights Amendment (ERA) is to ensure that men and women are guaranteed the same rights by law. The core text of the ERA is short and simple:

Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.

Picture: The United States Senate chamber where the ERA will be debated.

United States Senate chamber. Public domain image.

The text alone doesn’t seem harmful. If interpreted properly, it could be helpful, as it is obviously wrong to unfairly discriminate against women. Unfortunately, rather than addressing legitimate discrimination grievances, this clause has instead been interpreted as granting a right to abortion. Pro-choice advocates are using the ERA as a Trojan horse to sneak the right to abortion into the U.S. Constitution under the guise of “gender equality.” [Tweet that!]

Adding an amendment to the U.S. Constitution requires two things: Congress must pass the amendment, and 38 states must ratify (pass) it. After Congress passed the ERA in 1972, the states had 10 years to meet this ratification quota. 35 states ratified the ERA within five years, and the amendment was initially very popular. However, this popularity was present because many states did not believe abortion to be a “right’ protected in the ERA, as Roe v. Wade had not been decided yet when the ERA passed. Consequently, five states rescinded their ratification in the years following Roe. The Constitution does not specify whether a state may rescind its ratification of an amendment, and the Supreme Court will likely have to make a ruling on this, which could be a long and controversial process.

As of now, 37 states have ratified the ERA at some point in time. The initial ten-year ratification deadline has expired; however, if one more state ratifies the ERA, the amendment could still be added to the U.S. Constitution if it is passed by Congress again. While the current Republican majority in the Senate would likely block the ERA, this is not a long-term solution. Pro-choice Democrats who support the ERA will almost certainly regain both chambers of Congress eventually, so if a 38th state ratifies it and the Supreme Court determines all of those ratifications to be valid, it will only be a matter of time until the ERA becomes the next amendment in the U.S. Constitution.

California Reintroduces Campus Abortion Bill

Picture: California State Senate Chambers

California State Senate Chambers

Last year, California Governor Jerry Brown vetoed SB 320, a bill that would have required every public university in the state to provide abortion pills. Unfortunately, California is trying to pass this legislation once again, and it has been reintroduced in the new legislative session as SB 24. Advocates of the bill have also called it the “College Student Right to Access Act.”

In his veto, Gov. Brown briefly explained why he opposed the bill, stating abortion was a “long-protected right” in California but that forcing universities to offer abortion pills was “not necessary” because there are already abortion clinics within five to seven miles of most campuses.

While I am thankful that Gov. Brown vetoed this bill, I certainly don’t agree with his logic for doing so. The ability to kill human life should never be referred to as a right, and turning campus health centers into abortion providers is a terrible idea regardless of whether an abortion clinic is near campus or not. Brown essentially states that women should have an abortion center within a certain radius of their place of living, and he only vetoed the bill because that circumstance already exists. Brown expressed no concern in his veto for how campus abortions would be dangerous for pregnant mothers or lethal for innocent unborn babies.

According to NPR, implementing SB 320 would have cost an estimated $14 million and several pro-choice organizations agreed to cover this cost. However, the bill is written to allow the expenses to be covered by other means as well, and nothing in the bill restricts student health fees from being allocated towards medical abortion procedures. This loophole has the potential to allow the state to force pro-life college students to pay for the abortions of other students on campus through obligatory student fees. This subsidized system, if put in place, would violate the consciences of students opposed to abortion.

The New York “Reproductive Health Act”: Rhetoric and Reality

New York’s broad new abortion law, dubbed the “Reproductive Health Act,” was sold to the public as merely enshrining Roe v. Wade into state law. On the surface, it seems to do just that by extending abortion-on-demand to 24 weeks and allowing for exceptions beyond that point in cases where the fetus is unlikely to survive outside the womb or when “necessary to protect the patient’s life or health.” If the law only codifies what was already federal policy, it seems odd that the governor’s and Assembly’s official statements include multiple quotes praising New York’s “progressive” position on abortion. Perhaps this is a reference to just how “progressive” Roe is; after all, it created a national right to abortion so broad that babies could be killed at the point of birth based on an incorrect diagnosis or a temporary emotional state. But no, there are new abortion “rights” in this new law that put it outside even the realm of Roe, which the people selling the law knew even as they said it was the status quo. New York is again “leading the way,” but should anyone want to follow?

New York

Apparently, Killing Shouldn’t Be a Crime

One notable change in the Act is that all language regarding abortion has been cut from the penal code and the new provisions were moved to the public health law. On a rhetorical level, New York is arguing that abortion is a health care right, even a “fundamental” one, and that as such it should not be considered part of criminal law. On a practical level, this means that, even though elective abortion after 24 weeks remains illegal, there are no legal grounds to prosecute whoever performs such an abortion. What exactly is the enforcement method for the few restrictions on abortion that survive this law? Are we relying on the moral conscience of late-term abortion practitioners to obey a law that shrinks their business yet has no method of enforcement? Consider me skeptical of the value of New York’s legal line in the sand at 24 weeks.

The move to strike any language about abortion or “born-alive infants” from the penal code also removes protection from two groups of children—well, two groups besides the vast number of children already being freely aborted under the law. In the first case, as was argued by opponents of the Act, there is now no law against the “involuntary termination” of a pregnancy, let alone a law against fetal homicide; this means that a woman whose child is killed prenatally in an assault or car accident can’t prosecute the killer in New York state. Supporters of the law attempted to argue that the woman has much better charges available with longer sentences, like felony assault, so it doesn’t matter that there is no law against killing the fetus. By this logic, a shooter who kills one person and injures nine others should only be charged for the one murder; the nine attempted murders don’t matter, since you’ll just get a life sentence under the higher charge anyway.

Why would state representatives say something that flies in the face of basic principles of criminal law? New York is unwilling to say that any injustice was done to the now-dead fetus, because, if it had any right not to be killed, it would be inconvenient for the logic of abortion as social good. They’re willing even to imply that the only right which is being violated is the mother’s right to her bodily integrity, but in that same bill they claim she has “a fundamental right to choose to carry the pregnancy to term.” On their own terms, they should argue that involuntary termination and fetal homicide are acts of injustice against the woman’s reproductive right, not only her right to bodily autonomy. The mother is disallowed by law from seeking justice for her child and is told that it is enough that the state might award justice to her. New York is so gripped by abortion fever that it would rather tell pregnant victims of assault how they should view their assault than grant them the right to seek justice for their murdered children.[Tweet that]