What the Kansas Supreme Court Forgot

By Rita Dunaway Published on May 9, 2019

It has to be one of the most egregious examples of judicial overreach ever. The Kansas Supreme Court recently declared that the Kansas Constitution protects a woman’s right to abortion. Therefore Kansas may not enforce its ban on a particularly brutal form of second-trimester abortion.

At first glance, it may look like the Kansas Supreme Court is following in the footsteps of the United States Supreme Court. It was that Court which first discovered the “right” to abortion lurking in the shadows of words that say nothing about it.

But even the U.S. Supreme Court recognized that there was more to the question of abortion than the mother’s rights. There is a reason why so many are so deeply opposed to the practice. Despite what abortion activists claim, it’s a reason that has nothing to do with some sick desire to control women’s bodies or to subjugate women to men. The reason is simple. There is another distinct human being involved in every abortion. In every successful abortion, this other human being dies.

A Person-Shaped Hole

In its 1973 Roe v. Wade decision, the Supreme Court addressed this issue. It did not simply ignore this argument that an unborn child had the right to life. It said:

“The [State] argue[s] that the fetus is a ‘person’ within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment.”

Even back then, the Court could not deny that a baby in the womb is an individual — a human being. But the Roe Court hearkened back to the thinking of Dred Scott v. Sandford. In that case, the Court concluded that some human beings aren’t entitled to have their basic rights protected by the courts. It divorced legal “personhood” from human-ness. And it found no clear or consistent source of state law defining an unborn baby as a “person” for legal purposes.

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Fast-forward to 2013. The elected lawmakers in the State of Kansas wanted to fill this legal gap. So they passed a law which states, “[T]he laws of this state shall be interpreted and construed to acknowledge on behalf of the unborn child at every stage of development, all the rights, privileges and immunities available to other persons, citizens and residents of this state, subject only to the Constitution of the United States, and decisional interpretations thereof by the United States Supreme Court and specific provisions to the contrary in the Kansas constitution and the Kansas Statutes Annotated.” Governor Sam Brownback signed the bill into law.

Kansas Supreme Court Misses the Forest for the Trees

The Kansas Supreme Court’s recent decision halted enforcement of the ban on certain types of second-trimester abortions. Note that it was based entirely on the court’s creative findings regarding women’s rights under the state Constitution.

As one wades through the nearly 200 pages that explain the court’s decision, one can almost picture the Justices with headlamps and pickaxes. They’re excavating the site of the Kansas Constitution for the hidden abortion “right.” They find it secretly grounded in the thinking of delegates to an 1859 convention and the writings of John Locke, and consider their work complete.

The court announced that the Kansas Constitution contains a right of “personal autonomy” that 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.” It ruled that there was unlikely to be any compelling government interest in restricting this type of abortion.

But what about the unborn babies who are torn limb from limb by the procedure the challenged law prohibits? The court scoured Lockean theory and centuries-old history. But it overlooked the clear, concise statute written and passed a scant six years ago, K.S.A. 65-6732. That statute acknowledges the rights of the unborn for purposes of state law.

Kansas law explicitly recognizes that human beings in the womb have their own right to life. And the Kansas courts are not at liberty to pretend they don’t. The fact that the court did so is not only an outrageous example of judicial activism. It is a full-on human rights atrocity.

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