The Kansas Supreme Court issued a stunning 6-1 decision today that guarantees expansive abortion rights in the state, no matter what happens at the federal level. To make this clear: even if Roe v. Wade is overturned, abortions will be legal in Kansas, because the state Supremes say abortion is guaranteed in the state constitution.
What makes today’s ruling so extreme is that, as a pro-life Kansas lawyer friend explained to me:
The U.S. Supreme Court uses an “undue burden” test to evaluate pro-life laws under the U.S. Constitution, which while bad at least gives us a fighting chance to see some restrictions upheld. The Kansas Supreme Court has adopted a “strict scrutiny test” – the most difficult legal standard for a challenged law to withstand. As even the one concurring justice notes it’s a standard “very rarely used in Kansas.”
In the New York Times, an abortion rights law expert with Planned Parenthood’s research arm said:
“This is the first time that the Kansas Supreme Court has ruled that abortion rights are protected under the state Constitution,” Ms. Nash said. “Nearly all of the abortion restrictions in the state, they could be challenged and struck down, with this ruling.”
“It opens the door for abortion rights,” she added.
Kansas is a strongly pro-life state. The only way this decision can be overturned is through an amendment to the state constitution. Today’s ruling goes beyond what abortion rights advocates had hoped for. Now the state’s pro-life community is gearing up to pass a constitutional amendment.
Here is a link to the ruling, including a separate concurring opinion, and the lone dissent, which was by Justice Caleb Stegall. If the name is familiar to you, that’s because Caleb is a longtime friend of mine, and one of the founders of Front Porch Republic. His is no doubt the first judicial opinion in US history that quotes Karl Polanyi, Eric Voegelin, and Patrick Deneen.
I’ll get to the dissent in a moment. First, here’s the core of the majority’s opinion:
At the heart of a natural rights philosophy is the principle that individuals should be free to make choices about how to conduct their own lives, or, in other words, to exercise personal autonomy. Few decisions impact our lives more than those about issues that affect one’s physical health, family formation, and family life. We conclude that this right to personal autonomy is firmly embedded within section 1’s natural rights guarantee and its included concepts of liberty and the pursuit of happiness.
In this passage, they object to parts of Justice Stegall’s dissent:
Consistent with these and other states, today we hold our Kansas Constitution’s drafters’ and ratifiers’ proclamation of natural rights applies to pregnant women. This proclamation protects the right to decide whether to continue a pregnancy.
We are struck by the ease with which the dissent ignores the importance of this natural right and the consequences women would face if we did not recognize the founders’ intent to protect it from an overreaching government. The dissent mentions
pregnant women only when discussing the graphic details of the D & E and other medical procedures. By avoiding any other aspect of the lives of pregnant women, the dissent appears to maintain that upon becoming pregnant, women relinquish virtually all rights of personal sovereignty in favor of the Legislature’s determination of what is in the common
good. Essentially, the dissent exploits the vivid medical details of abortion procedures by turning them into a constitutional prerogative to invade the autonomy of pregnant women
and exclude them from our state Constitution’s Bill of Rights.
Stegall’s dissent is quite long — it starts at page 115 — but as anyone who has read his essays knows, he’s a fantastic writer. In terms of judicial prose, this dissent is worthy of Scalia. This line characterizing the worldview of the judicial majority is utterly devastating: “In this imagined world, the Liberty Bell rings every time a baby in utero loses her arm.”
Let’s read more of the Stegall dissent at length. Keep in mind that his dissent is not based on whether abortion is morally right or morally wrong, but on the right of the people to govern themselves on the matter. Excerpts:
This case is not only about abortion policy—the most divisive social issue of our day—it is more elementally about the structure of our republican form of government. Which is to say, this case is about the proper conditions for just rule. At bottom, this case is about finding and drawing the sometimes elusive line between law and arbitrary exercises of power. Here we venture onto a battlefield as old as politics itself. And as we argue about the structure of government—and ultimately delineate the proper conditions for just rule—we must never forget that we are also actively engaged in ruling.
The structural idea that gave birth to Kansas as a political community, which has achieved consensus support across most of our history, is that the proper conditions for just rule are met via participatory consent to secure and promote the common welfare. Today, a majority of this court dramatically departs from this consensus. Today, we hoist our sail and navigate the ship-of-state out of its firm anchorage in the harbor of common good and onto the uncertain waters of the sea of fundamental values. Today we issue the most significant and far-reaching decision this court has ever made.
The majority’s decision is so consequential because it fundamentally alters the structure of our government to magnify the power of the state—all while using that
power to arbitrarily grant a regulatory reprieve to the judicially privileged act of abortion. In the process, the majority abandons the original public meaning of section 1 of the Kansas Constitution Bill of Rights and paints the interest in unborn life championed by millions of Kansans as rooted in an ugly prejudice. For these reasons, I dissent.
Reading today’s majority opinion is a follow-the-white-rabbit experience. One is left feeling like Alice, invited by the Queen to believe “‘as many as six impossible things before breakfast.'” Carroll, Through the Looking-Glass 100 (1899). Indeed, the story told by the majority is a strange one. In it, all the luminaries of the western legal tradition— from Sir Edward Coke and William Blackstone to Edmund Burke and Thomas Jefferson—would celebrate and enshrine a right to nearly unfettered abortion access. In this imagined world, the Liberty Bell rings every time a baby in utero loses her arm.
The very language chosen by the majority to describe the act prohibited by S.B. 95—”‘instrumental disarticulation,'” “‘collapse of fetal parts,'” “fetal demise,” etc. (slip op. at 8-9)—is designed to “name things without calling up mental pictures of them.”
Orwell, Politics and the English Language, in 4 The Collected Essays, Journalism, and Letters of George Orwell 127, 136 (Orwell & Angus eds., 1968). In the majority’s narrative, even the word abortion is set aside in favor of the anodyne decision to
“continue a pregnancy”—a phrase occurring more times in the majority opinion than I can cite. Perhaps the majority finds the unsanitized facts “too brutal for most people to face.” Orwell, at 136. The majority doesn’t recite the portion of S.B. 95 defining “dismemberment abortion” as:
“[W]ith the purpose of causing the death of an unborn child, knowingly dismembering a living unborn child and extracting such unborn child one piece at a time from the uterus through the use of clamps, grasping forceps, tongs, scissors or similar instruments that, through the convergence of two rigid levers, slice, crush or grasp a portion of the unborn child’s body in order to cut or rip it off.” K.S.A. 65-6742(b)(1); L. 2015, ch. 22, § 2.
As Justice Kennedy wrote in Stenberg, 530 U.S. at 957 (Kennedy, J., dissenting), the “majority views the procedures from the perspective of the abortionist, rather than from the perspective of a society shocked when confronted with a new method of ending human life.” Justice Kennedy went on to describe what actually happens during a D & E procedure—the very procedure at issue here. He did so “for the citizens who seek to know why laws on this subject have been enacted across the Nation.” 530 U.S. at 957 (Kennedy, J., dissenting).
The procedure “requires the abortionist to use instruments to grasp a portion (such as a foot or hand) of a developed and living fetus and drag the grasped portion out of the uterus into the vagina.” 530 U.S. at 958 (Kennedy, J., dissenting). Using the resistance “created by the opening between the uterus and vagina” the “grasped portion” is torn “away from the remainder of the body.” 530 U.S. at 958 (Kennedy, J., dissenting). “For
example, a leg might be ripped off the fetus as it is pulled through the cervix and out of the woman.” Gonzales v. Carhart, 550 U.S. 124, 135, 127 S. Ct. 1610, 167 L. Ed. 2d 480 (2007). The baby then “bleeds to death as it is torn limb from limb.” Stenberg, 530 U.S. at 958-59 (Kennedy, J., dissenting). The child “can survive for a time while its limbs are being torn off.” 530 U.S. at 959 (Kennedy, J., dissenting). The heartbeat can continue
even “with ‘extensive parts of the fetus removed.'” 530 U.S. at 959 (Kennedy, J., dissenting). “At the conclusion of a D&E abortion . . . the abortionist is left with ‘a tray full of pieces.'” 530 U.S. at 959 (Kennedy, J., dissenting).
The Kansas Supreme Court majority indicates that Justice Stegall was a bad sport for detailing what they are actually defending.
After a rich history lesson on the idea of individual liberty and political community in the American tradition, Stegall gets to the core of his objection to the majority ruling:
Either section 1 is a fount of judicially discovered and preferred “fundamental” rights or it is a blanket guarantee to all Kansans of the first rights of republican self-government: the right to participatory consent to government for the benefit of the
common welfare, on the one hand, and the right to otherwise be free from arbitrary, irrational, or discriminatory regulation that bears no reasonable relationship to the common welfare, on the other. Section 1 cannot be both. The former road alienates the people from the exercise of power and disembeds them from the political community. But this is the way the majority has decided to go.
In other words, the state Supreme Court has said that the people of Kansas do not possess the right to rule themselves when it comes to matters governing abortion. And it claims that this right was embedded in the state’s 1859 constitution all along.
Stegall is not having his colleagues’ condemnation of his point of view:
I am agog. I must know—what have my colleagues been reading? It cannot be anything I have written. In any case, I assure the reader this description of my view is a fabrication so flimsy it makes run-of-the-mill straw men appear as fairy tale knights by comparison.
The ghost of Nino slaps his spectral thigh in delight!
A couple more passages of note:
Many Kansans—a significant majority of them if one extrapolates from the votes of their political representatives—will feel aggrieved by the decision this court renders
today. They will not be pacified by claims that the result was achieved by a fair, impartial, and “democratic vote by [seven] lawyers.” Stenberg, 530 U.S. at 955 (Scalia, J., dissenting). It’s important to ask, why? Is it because, as the majority suggests, a
significant majority of Kansans continue to be informed by centuries-old prejudices? Given the flourishing and broadly equal society Kansans have fashioned, this explanation
seems unlikely at best. Or is it because Kansans will feel, even if only intuitively, that an important right of self-government has been stolen away from them under a cloud of impenetrable legal jargon?
At the outset, I noted that this case isn’t just about the policy of abortion, it is more basically about the structure of our government. While true, this description fails to account for a strange but persistent symbiosis between the two. Abortion has become the judicially preferred policy tail wagging the structure of government dog. For the majority, the settled and carefully calibrated republican structure of our government must give way, at every turn, to the favored policy. But in my considered judgment, constitutional structure is the very thing securing and guaranteeing the full range of human liberty. History and reason suggest that those who, in the name of liberty, tear down that edifice will wind up out in the political elements, unsheltered and exposed to the cold wind of every arbitrary power.
It is worth going back to the controversial essays in the 1996 First Things symposium on “the judicial usurpation of politics,” which was convened around the question of abortion jurisprudence. Almost a quarter century ago, the First Things editors wrote in their introduction to the symposium:
What is happening now is a growing alienation of millions of Americans from a government they do not recognize as theirs; what is happening now is an erosion of moral adherence to this political system.
What are the consequences when many millions of children are told and come to believe that the government that rules them is morally illegitimate? Many of us have not been listening to what is more and more frequently being said by persons of influence and moral authority. Many examples might be cited. Supreme Court Justice Antonin Scalia in a recent lecture: “A Christian should not support a government that suppresses the faith or one that sanctions the taking of an innocent human life.” The Archbishop of Denver [at that time, Charles Chaput — RD] in a pastoral letter on recent court rulings: “The direction of the modern state is against the dignity of human life. These decisions harbinger a dramatic intensifying of the conflict between the Catholic Church and governing civil authorities.”
Professor Hittinger observes that the present system “has made what used to be the most loyal citizens—religious believers—enemies of the common good whenever their convictions touch upon public things.” The American people are incorrigibly, however confusedly, religious. Tocqueville said religion is “the first political institution” of American democracy because it was through religion that Americans are schooled in morality, the rule of law, and the habits of public duty. What happens to the rule of law when law is divorced from, indeed pitted against, the first political institution?
“God and country” is a motto that has in the past come easily, some would say too easily, to almost all Americans. What are the cultural and political consequences when many more Americans, perhaps even a majority, come to the conclusion that the question is “God or country”? What happens not in “normal” times, when maybe America can muddle along, but in a time of great economic crisis, or in a time of war when the youth of another generation are asked to risk their lives for their country? We do not know what would happen then, and we hope never to find out.
Americans are measurably less religious today than they were in 1996. But those Americans who are still traditionally religious have much more reason in 2019 to think hard about this FT passage than we did back then. It’s not Bible-thumpers forcing the issue; it’s judicial elites who are so determined to achieve a progressive result that they detect in an 1859 document the constitutional right for a mother to dissect her unborn child.
History will record that Justice Caleb Stegall was the only one to object to this barbarity. I am proud to call him my friend.