Two of our local state legislators blasted the Kansas Supreme Court for its ruling Friday that declared the state constitution guarantees women the right to an abortion, effectively blocking a law that bans a second trimester procedure.
“I was not surprised, but extremely disappointed in that ruling,” Sen. Caryn Tyson said during Saturday’s Legislative Coffee at City Hall. “I think this is a slippery slope.”
The ruling came from a 2015 lawsuit, which in essence protects abortion rights for Kansas women even if Roe v. Wade is overturned.
“That is a broad case,” Rep. Blaine Finch, who also is a lawyer, said. “The Court looked at Section I and II of the state’s Bill of Rights and found a more expansive right to an abortion than the United States Supreme Court found using the 14th Amendment.”
The Court said the Kansas Constitution’s 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.”
Tyson said the ruling effectively gives the justices the right to decide when they use that language and when they don’t.
“Our Supreme Court has crossed a line,” she said. “Our Court is out of control. I hope the public starts realizing that. They are legislating from the bench.”
Finch said the Court cited a section of the state constitution that reads, “all men are possessed with equal and inalienable natural rights.” Among those are the life, liberty and the pursuit of happiness, he said.
“The Supreme Court takes that phrase, ‘inalienable natural rights,’ and stretches that to include the right to an abortion,” Finch said.
Tyson said the justices need to be reigned in, especially after overturning a couple of high profile death penalty cases.
“Our Court has gone rogue,” Tyson said. “They have gone off the reservation. I heard a quote — it sounds a little bit harsh. It says ‘our Supreme Court is allowing us to kill babies, but they are babying killers. It does sound harsh, but that is how [we] are going as a state. We need to stand up to them. We need to take action.”
Blaine said the ruling will take in more than just the abortion issue.
“For the Court to develop a theory of natural rights — natural rights are what the Court says they are — we will see a flood of litigants in this state seeking natural rights protection for a whole host of things that are undefined,” Finch said. “We simply don’t know what that phrase means and it is amorphous enough it means whatever the Supreme Court wants mean. This is a very dangerous precedent.”
Finch said this a frightening slope that Kansas is about to go on.
“As someone who is pro-life, I have grave concerns about the Court finding a right to an abortion in the constitution,” Finch said. “What Kansas will end up doing — what almost every other state where the Court has made this determination has done — is put this question before the public and let the people decide whether they agree that their constitution contains a right to an abortion through the form of a constitutional amendment. I suspect that will be on the ballot sometime in 2020 for people to make that decision. Some states have adopted a constitutional amendment like Tennessee that over rode their Court. Some have not, like Iowa.
“This is important and momentus enough that the public and people should have a chance to weigh in on this question and decide if they agree that in 1861 the Wyandotte Convention meant to include the right to an abortion when they said, ‘humans have natural rights.’ There will be a lot of discussion and words written about this.”
The Supreme Court vote was 6-1 with the lone dissenter being Caleb Stegall, an appointee of abortion opponent and former Gov. Sam Brownback.
“Today,” Stegall said, “we hoist our sail and navigate the ship-of-state out of its firm anchorage in the harbor-of-commongood and onto the uncertain waters of the sea-of-fundamental-values” he said Friday. “Today we issue the most significant and far-reaching decision this court has ever made.”
The Legislature in 2015 enacted a ban on dilation and evacuation, a procedure used for 95 percent of patients who terminate a pregnancy in the second trimester. Tyson said the bill was overwhelmingly supported by both chambers.
Stegall said, the opinion overlooks the “inconvenient fact,” that a majority of the 41 women serving in the Kansas Legislature — at the time — voted in favor of the bill.
The ruling may put undue pressure on district courts.
“Not only must it grapple with one of the most divisive issues of our time, it must also take into account advances in science that have blurred the sharp trimester-based lines used in Roe’s strict scrutiny analysis,” the high court said. “And it must do this with a deep awareness that the outcome of this case could generate a profound and personal consequence for many women. But we have great confidence in the trial court’s ability to meet this challenge.”