Kansas Abortion Law Fight Exposes ‘Pro-Life’ Democrats As Cowards

Kansas Abortion Law Fight Exposes ‘Pro-Life’ Democrats As Cowards

An extreme Kansas Supreme Court abortion decision prompted pro-lifers to introduce the Value Them Both Amendment, which so-called pro-life Democratic legislators have failed to support.
Margot Cleveland
By

Kansas “pro-life” Democrats appear willing to cave to political pressure rather than vote their supposed conscience. That is the takeaway from the continuing battle at the state house over the proposed “Value Them Both” constitutional amendment that would overturn the Kansas Supreme Court’s extreme abortion decision in Hodes & Nauser v. Schmidt.

The Hodes decision, handed down by the Kansas high court less than a year ago, declared that the state’s 150-year-old constitution includes a “fundamental right to abortion.” Even more devastating to pro-life Kansans, the state Supreme Court, in inventing this new constitutional right, adopted a standard of review more stringent than even the U.S. Supreme Court originally crafted in Roe v. Wade, which was later narrowed in Planned Parenthood v. Casey.

The currently controlling Casey standard provides that, prior to an unborn child’s viability outside the womb, a state law cannot impose an “undue burden” on the “right” to abortion, meaning the law must not have the “purpose or effect” of placing a substantial obstacle in the path of a woman seeking an abortion.

But as legal scholar Elizabeth Kirk told a joint Senate-House committee in Kansas considering the amendment, the Supreme Court in Casey also made clear that, under the undue burden test, states could still “‘take steps to ensure that [the woman’s] choice is thoughtful and informed,’ could create structural mechanisms by which the state, or the parent or guardian of a minor, expresses profound respect for life of unborn, could pass measures designed to persuade a woman to choose childbirth over abortion, could pass laws which have ‘the incidental effect of making [abortion] more difficult or expensive to procure,’ or regulations ‘to further the health or safety of a woman seeking an abortion.’”

After viability, as Kirk further explained, Casey allows states to prohibit abortion so long as the law maintains an exception “for the preservation of the life or health of the mother.”

Hodes Bans Common-Sense Abortion Regulations

In contrast, the Kansas court concluded in Hodes that regulations challenged under the Kansas Constitution would be judged by strict scrutiny, meaning, as Kirk testified, that “for an abortion regulation to pass constitutional muster, the state must demonstrate that it has a ‘compelling state interest’ and that the law in question is ‘narrowly drawn to express only the legitimate state interests at stake.’”

Few laws can survive such constitutional muster, Kirk explained. Thus, in Kansas, laws that would be constitutional under the federal “undue burden” standard of Casey could be declared unconstitutional under the stringent strict scrutiny standard adopted by the Kansas Supreme Court.

Kirk, whose complete testimony is available here and who offers a must-read synopsis of the law and issue, detailed for the joint committee numerous examples of common-sense abortion regulations that other states applying strict scrutiny have declared unconstitutional:

Under strict scrutiny, Alaska has invalidated funding restrictions, parental consent, and parental notification, California has invalidated funding restrictions and parental consent, Florida has struck down parental notice and parental consent, Iowa has struck down a 72-hour waiting period, Massachusetts has invalidated funding restrictions and a parental consent statute, Minnesota has struck down funding restrictions, Montana has invalidated a requirement that only physicians may perform abortions, New Jersey has struck down funding restrictions and parental notice, and Tennessee struck down informed consent and a waiting period.

Pro-Lifers Introduce the ‘Value Them Both’ Amendment

Recognizing the expansive and extreme scope of the Hodes decision, pro-life advocates promptly presented the state legislature with the Value Them Both Amendment to reverse Hodes and leave lawmaking to the legislature. That amendment provides “to the extent permitted by the constitution of the United States, the people, through their elected state representatives and state senators, may pass laws regarding abortion.”

To amend the constitution in Kansas, however, requires both houses to approve the proposed amendment by two-thirds vote, at which point the amendment is placed on the ballot for voters to decide. On Jan. 29, 2019, with a 28-12 margin — with no Democrats voting in the majority — the Senate voted to put the Value Them Both Amendment on the August 2019 ballot. But in the House, the amendment failed to garner the 84 votes needed. The final 80-43 tally included four Republicans voting no and all Democrats voting in lockstep against the amendment.

Several Democrats who refused to support the amendment had previously voted to ban live dismemberment abortions, the actual statute that had spawned the Hodes case in the first place. And other Kansas House Democrat holdouts had voted for other abortion regulations in 2017. Yet none of these Democrats voted in favor of placing the Value Them Both Amendment on the ballot.

‘Pro-Life’ Democrats Tuck Tail and Run

Everyone on the ground knows why. But none of the purportedly pro-life Democrats will go public. They are scared. And it appears they value their seat more than they do their sacred duty to protect life. If these pro-life Democrats continue to vote with their abortion-on-demand colleagues, they will have only themselves to blame when Kansas turns into California.

How will these pro-life Democrats answer when their liberal state supreme court declares taxpayer-funded abortion constitutionally mandated? What will they tell their constituents? What will they tell their priests, pastors, and rabbis? What will they tell their fellow parishioners who are forced to pay for the killing of innocent human beings?

And what will they tell the parents of a young girl, pressured by a boyfriend to abort her child and their grandchild, when the state supreme court strikes the state’s parental consent law, leaving the teen without the guidance and support of the adults who love her more than anyone else in the world?

Pro-Life Democrats Must Stand for Value Them Both

It’s not too late, though. All it takes is for one courageous representative to vote his or her conscience. While they’re at it, lawmakers should expose the complicity of the politicians owned and controlled by the abortion lobby.

Tell the public exactly what is happening. Call a press conference, make it a joint one, and stand with your supposed pro-life peers. Tell Kansans you will be voting for the Value Them Both Amendment. Tell Kansans this amendment will ensure that the common-sense laws passed by the state legislature will remain in effect, that there will be no taxpayer-funded abortions, that teens will have their parents’ guidance, and that abortion facilities will not turn into Gosnell mortuaries.

Then tell them you know this is what most Kansans want but that there will soon be a deluge of attack ads, with outside money pouring into the state to convince voters to toss you out. And tell them who threatened to destroy your political careers at the altar of abortion. Name names. Point fingers, and then leave it in the hands of the voters.

Tell them you would rather lose your job representing them, the people of Kansas, than your soul. Tell them you’d rather lose your clout and cachet than have Kansans compelled to use their hard-earned money to pay for abortion. Tell them you’d rather lose everything than have one young girl spend the rest of her life devastated by a decision she made when she was scared and alone, when she needed her parents’ guidance.

Tell them, ‘I am a pro-life Democrat, and I am proud to defend the weak and defenseless — including the weakest and most defenseless of all, the unborn.’ Tell them you are no longer afraid, because it profits a man nothing to give his soul for the whole world.

Pro-life Democrats need to ask themselves: “But for Kansas?”

Margot Cleveland is a senior contributor to The Federalist. Cleveland served nearly 25 years as a permanent law clerk to a federal appellate judge and is a former full-time faculty member and adjunct instructor at the college of business at the University of Notre Dame. The views expressed here are those of Cleveland in her private capacity.

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