NRL News

The need to restate the obvious to a politicized Kansas Supreme Court

by | May 1, 2019

By Dave Andrusko

When I first sat down at my desk to write this post, the Kansas legislature was in the midst of an attempted veto override that, as was the case in the Senate in North Carolina on a different measure, will likely hinge on a single vote. The issue, as NRL News Today readers know, is that Kansas Gov. Laura Kelly vetoed the Abortion Pill Reversal Notification bill.

This incredibly tense nail-biter is set against the backdrop of an April 26th decision by the Kansas Supreme Court. By reaching into its handy dandy bag of penumbras and emanations, six justices discovered a heretofore unknown “right” to abortion in the state constitution which had been invisible to mere mortals in the 170 years since the Kansas state constitution was adopted.

Sympathetic reporters and pro-abortion columnists chortled about how “far” a state as pro-life as Kansas had come. But, of course, the state hadn’t suddenly embraced the ideology of unlimited “choice.”

Justices Marla Luckert, Lawton Nuss, Carol Beier, Dan Biles, Eric Rosen and Lee Johnson had, in a 199-page-long decision that reads as if it had been written by Margaret Atwood. (Atwood penned the ludicrous “The Handmaid’s Tale,” a dystrophic novel about a society where women have been reduced to hapless breeders.)

On page 50, we’re told, “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.”

Imagine that, a two-fer. They had used the debate over the constitutionality of a law that bans the dismemberment of living unborn children to dismember the Kansas state constitution.

Not enough to give a thumbs up to allowing abortionists to dilate a woman’s cervix and then use steel instruments to dismember a living, well developed unborn baby, piece by bloody piece, until the baby bleeds to death.

In for a dime, in for a dollar. Voilà, there is a now “right” to abortion in the state Constitution’s Bill of Right which imperils any and all pro-life legislation.

In that sense, it’s not surprising that it took more than two years after the justices first heard oral arguments on the constitutionality of S.B. 95 to crank out this opinion.

Conjuring up imaginary rights requires time and effort.

As we reported back in April 2017, it was abundantly clear where the court was headed. Only Justice Caleb Stegall did not swoon at the argument made by Janet Crepps, an attorney for the New York-based Center for Reproductive Rights. NRL News Today reported

Solicitor General Stephen McAllister argued that abortion supporters want the Kansas Supreme Court to engage in a brand of judicial activism that ignored the text of the state’s constitution and the history of pro-life laws enacted in Kansas.

“If the people of Kansas want to create a constitutional right to abortion, they have a ready mechanism for doing so — the constitutional amendment process. Kansans have not been shy about utilizing it.”

CRR’s Crepps urged the justices to declare a “fundamental” right to abortion even broader than that created by Roe v. Wade, based on a “liberty” interest which has “evolved” during the nation’s “march to progress.”

The six justices lectured us about how out-of-step the framers and ratifiers of the state constitution were with today’s more “progressive” thinking but had nonetheless unknowingly set the stage for the state High Court to find a right to abortion in the word “liberty.” The meme that the court majority adopted (as Justice Stegal wrote) was that S.B. 95 represented “a battleground in a war on women,” which, as he correctly noted, “is a ruse.”

Abortion restrictions are not relics of a patriarchal society—they are a longstanding feature of Kansas law. A ban on dismembering a living human being in utero is not inherently sexist and discriminatory. There are women on both sides of this debate—one that involves complex considerations about the nature of life itself; the contours of a just and fair society; and competing interests, each of which may have a legitimate claim on society’s attention.

Justice Stegall rightly invoked George Orwell who famously wrote “Political language… is designed to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind.”

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. is designed to “name things without calling up mental pictures of them.” [A quote from Orwell’s “Politics and the English Language.”] 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” [another Orwell quote].

There is so much wrong with the majority’s opinion and so much right in Justice Stegall’s dissent that we’ll revisit this decision again. For now, let me end with another Orwell quote:

We have now sunk to a new depth at which restatement of the obvious is the first duty of intelligent men.

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Categories: Judicial
Tags: Kansas