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Post-Dobbs, The Abortion Battle Hits Activist State Courts

Part 2 of 3

Now Kansans Have to Amend the State Constitution

While Hodes conflicted with the pro-life principles held by the majority of Kansans, that did not dissuade the state supreme court from finding a constitutional right buried in the state’s 150-plus-year-old constitution. Those justices, after all, were not beholden to ordinary Kansans, with four of the Kansas Supreme Court justices in the Hodes majority having been appointed by Gov. Kathleen Sebelius, a supporter of legal abortion.

The Kansas Supreme Court justices in Hodes did precisely what the U.S. Supreme Court in Dobbs condemned—they misused their raw judicial power to prevent the populace from addressing “the issue of abortion through the processes of democratic self-government.” Kansans are attempting to reclaim that authority and have been for the last three years, but to do so and overturn the Hodes decision requires citizens to amend the state constitution.

On August 2, 2022, Kansans will have the chance to do so when citizens go to the polls to vote on the Value Them Both Amendment. The ballot summary of the proposed amendment explains that “a vote for the Value Them Both Amendment would affirm there is no Kansas constitutional right to abortion or to require the government funding of abortion, and would reserve to the people of Kansas, through their elected state legislators, the right to pass laws to regulate abortion.” In other words, the state constitution would remain neutral on abortion and leave the decision to the people and their elected representatives.

Here’s What Pro-Lifers Should Do

Kansas should serve as a warning to the pro-life movement of the risk activist state courts pose in other states and prompt a three-prong approach to counter the abortion lobby’s strategy.

First, the right-to-life movement should work to tee up constitutional amendments that clarify there is no state constitutional right to abortion. Four states currently have constitutional amendments expressly providing that the state constitutions do not include a right to abortion, with Tennessee passing the first amendment in 2014. Alabama and West Virginia followed in 2018, and Louisiana voters approved a similar amendment in 2020.

Second, just as elections matter on the federal level for determining the composition of the U.S. Supreme Court, the pro-life movement must make clear the importance elections hold at the state level for both governors, who may appoint justices, and the justices themselves. Also, politicians and their staff responsible for vetting or appointing justices must take that responsibility more seriously and consider the potential jurist’s judicial philosophy.

Finally, politicians and pro-life advocates must educate the public on the value of allowing abortion policy to be decided by the legislative process instead of by judicial fiat. The public needs to hear the truth that if a state court declares a state constitutional right to abortion exists, a handful of justices will have the power to mandate an extreme abortion regime, allowing for post-viability abortions and taxpayer-funded abortions, and putting at risk even the most popular bipartisan legislation.

Governor Pushing for Human Dismemberment

With the volume of discourse raised since Friday’s release of Dobbs, it will be difficult to break through the noise, especially in states led by Democrats, such as Michigan. In Michigan, Democrat Gov. Gretchen Whitmer has been using her bully pulpit to frame the public debate over abortion while she uses her office to push the Michigan Supreme Court to declare a right to abortion under the Michigan constitution.

https://thefederalist.com/2022/06/27/post-dobbs-the-abortion-battle-hits-activist-state-courts/