Trying to iron out the meaning of that confusing Kansas amendment vote on abortion
Here’s a little more background on the confusion.
In 2019 the Kansas Supreme Court had ruled that the state constitution includes a right to abortion, based on reasoning such as this:
The decision, in which one of the seven justices dissented, cites in its first sentence the first section of the Kansas Constitution’s Bill of Rights: “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”
The decision continues: “We are now asked: ‘Is this declaration of rights more than an idealized aspiration? And, if so, do the substantive rights include a woman’s right to make decisions about her body, including the decision whether to continue her pregnancy? We answer these questions, ‘Yes.’ ”
The court continued that “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.”
“The State may only infringe upon the right to decide whether to continue a pregnancy,” the ruling continued, “if the State has a compelling interest and has narrowly tailored its actions to that interest.”
That was in the Roe days, of course. Obviously, the state constitution is not explicit in protecting a right to abortion; this was something the judiciary decided, as a sort of “penumbra” (they didn’t use that word) of some fairly standard American rights language.
On Tuesday, the voters of Kansas had this to ponder:
[The] Legislative Power to Regulate Abortion Amendment was on the ballot in Kansas as a legislatively referred constitutional amendment on August 2, 2022…
A “yes” vote supported amending the Kansas Constitution to:
–state that nothing in the state constitution creates a right to abortion or requires government funding for abortion and
–state that the legislature has the authority to pass laws regarding abortion.A “no” vote opposed amending the Kansas Constitution, thereby maintaining the legal precedent established in Hodes & Nauser v. Schmidt (2019) that the Kansas Bill of Rights provides a right to abortion.
I doubt that most people are even aware that the language in the state constitution which the Kansas Supreme Court said provided a right to abortion was the same general language in the US Declaration of Independence, which says nothing about abortion rights. I certainly wasn’t aware of it until I did the research for this post; a lot of articles just mentioned language in the Kansas state constitution that establishes a right to abortion, and I assumed that language was explicit. But it is not. So the new amendment had to do with clarifying that there was no such language, contrary to what the Kansas Supreme Court had ruled in 2019.
Right now, Kansas law allows for abortion under the following circumstances:
Kansas’ abortion restrictions already include limiting abortions after 22 weeks of pregnancy to cases where the pregnant person’s life is in danger. The state also requires an ultrasound before a procedure.
There’s a lot of propaganda being written about what the Tuesday vote meant or didn’t mean. Plus, I doubt it’s fully understood by most people, and the MSM (including that link in NPR) doesn’t even try to make it clear. But as far as I can tell, what was actually being voted on was whether the previous decision by the judiciary that the state constitution should be interpreted as establishing a right to abortion ought to remain as is. The new amendment – which was defeated – was an attempt to clarify that the constitution of the state actually does not grant such a right.
In that sense, at least for now – as a result of both the earlier Kansas Supreme Court decision plus this week’s vote – the state can’t ban abortion entirely. That doesn’t mean Kansans couldn’t amend the state constitution in the future to specifically say that abortion could be banned entirely. Then, after that, the legislature could pass such a banning law if it saw fit (I doubt it would do that, but it then at least could do it). Then the Kansas Supreme Court could revisit the question, if necessary, if there was a case that challenged the new legislation. Or, even without such as amendment and new legislation, the Kansas Supreme Court could take on a new case if one arose, and re-interpret the present wording of the state constitution differently than it did in 2019, effectively reversing itself.
However, I believe that even now the state could restrict abortion somewhat more than it does right now, for example to a shorter gestation period than 22 weeks, or make other changes – if the state has a “compelling interest and has narrowly tailored its actions to that interest.”
the Kansas SCOTUS
Maybe “the SC of Kansas” or “the SCOK?” The latter has a bad ring to it.
Perhaps a typo at the end in the last paragraph ~ or example to a shorter gestation period than 22 months, or make other changes –
TommyJay:
Thanks, will change.
I just got tired of typing “Supreme Court of Kansas” and wasn’t thinking about the “US” part of the acronym.
OldTexan:
Not sure what the error is that you’re pointing out. Right now Kansas allows abortions up to 22 months (and even later to save the life of the mother). But even now, without any amendment to the state constitution, the legislature could pass a law limiting that somewhat.
Neo,
22 months, months would be a long gestation period, perhaps 22 weeks would make more sense.
It seems to me the Kansas legislature could change the law to make the limit 15 weeks, or 12 weeks, without running afoul of the state Supreme Court, since it would still be allowing abortion by choice.
On the typo, as a mother who went over nine months with both of my pregnancies, if it were 22 months, I’d have had to be under restraint by the end.
As a Kansan, I doubt the KS Supreme Court (SC) would allow any further restrictions on abortion. Our SC is extremely liberal, in part because of the screwy way our SC judges are chosen and because liberals rarely resign when a Republican is governor.
That was the main reason for the proposed constitutional amendment.
The NO vote only affirmed the status quo. Just like the US court and constitution the “abortion is legal” status rests solely on precedent, which as we have seen, can be overturned. Abortion rights in Kansas are still vulnerable.
There is also this frightening paradox:
Voters in Kansas were asked for their constitutional interpretation. Did voters agree with the Kansas court interpretation?
A Supreme Court decision must, as its highest priority, protect individuals from the “tyranny of the majority”. So, how does a majority vote protect an individual from the tyranny of the majority?
The Kansas SC ruling is patently absurd. If a fetus were merely part of a woman’s body before birth, then she too would feel pain when the baby is ripped piecemeal from her body. Not feeling the baby’s pain allows her to pretend that she hasn’t intentionally ended another person’s life.
Before every abortion, a woman should have to watch a 4D ultrasound video of a baby being aborted.
Let her make a fully informed decision.
“It can be clearly demonstrated that fetuses seek to evade certain stimuli in a manner in which an infant or an adult would be interpreted as a reaction to pain.”
Richard T.F. Schmidt, MD, past President of the American College of Obstetricians and Gynecologists
Here’s the scientific proof of fetal pain;
https://illinoisrighttolife.org/yes-an-unborn-baby-can-feel-pain-in-an-abortion-heres-the-scientific-proof/
The right vote was a decided yes, given the baseless reasoning in the prior State SC decision.
OldTexan; Kate:
And here I thought we were talking about elephants! 🙂
Will fix.
(Pregnancy does seem pretty long when you’re in it – but not THAT long.)
Heres an interesting question someone else posed on another site what was the breakdown of the vote m/f?
@ Neo > “There’s a lot of propaganda being written about what the Tuesday vote meant or didn’t mean. Plus, I doubt it’s fully understood by most people, and the MSM (including that link in NPR) doesn’t even try to make it clear.”
Many thanks for quoting the actual words of the state constitution, the court decision, and the ballot measure.
I get so aggravated at news stories (aka opinion pieces) that appear to assume we know the total background of everything they write about — when they actually are pretty sure we don’t, and thus omit any information that would undercut their own narrative.
NPR is especially guilty, but all of the media has that fault.
The 3/5 compromise was to mitigate progress of slavers’ influence. Conserving Roe and adjusting viability to where baby meets granny in state (pun intended), if not in process (i.e. evolution), is a 6-weeks compromise to mitigate the progress of liberals’ influence.
There is no mystery in sex and conception, the Pro-Choice ethical religion denies women and men’s dignity and agency, and reduces human life to negotiable commodities.
That said, a woman and man have four choices: sex or abstinence, contraception in depth, adoption (i.e. shared/shifted responsibility), and compassion (i.e. shared/personal responsibility), and an equal right to self-defense through reconciliation. American culture does not tolerate either slavery (e.g. conception without consent to sex) or diversity [dogma] (e.g. sexism, ageism).
Roe’s regrets. Ruth’s remorse. Human rites in lieu of human and civil rights, performed for social, redistributive, clinical, political, and fair weather causes. Keep women affordable, available, and taxable, and the bodies of evidence aborted and sequestered in darkness, privacy.
A baby if she or he is a life deemed worthy of life. A fetus, a technical term of art or abstraction for social distance, if it is declared to be a “burden”, a Jew in another era. Social progress: one step forward, two steps backward.
And baby born or delivered (vaginally or cesarean) earlier than 37 weeks is considered premature. If born after week 28, the baby has a good chance of surviving and not having any life threatening, or life-long complications. 21 weeks is currently the youngest any child has been born and survived. Any born prior to 26 weeks will likely have serious, life threatening, or life-long, complications.
What does this mean? Well, it does mean that there’s little reason to abort a child to save the life of a mother after it’s possible to deliver them alive, unless it is impossible to deliver either vaginally or surgically. (I don’t know any circumstances were that to occur, unless maybe the mother is a major hemophiliac.) It means the child can live without being biologically tethered to the mother.