State Democrat leaders appear to care more about abortion than they do the Constitution or their local citizens. This became clear after the Supreme Court overturned Roe and Casey last month in Dobbs v. Jackson Women’s Health Organization, stressing that the court was returning the authority to regulate abortion to the people and their elected representatives, where it rightly belongs.
“The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting,” the Dobbs court explained, adding “that is what the Constitution and the rule of law demand.”
The abortion lobby, however, has no intent of allowing citizens to have a say and proved that point by promptly filing lawsuits in four states, Utah, Kentucky, Idaho, and Mississippi, arguing that a right to abortion exists in those states’ constitutions. Prior to the Dobbs decision dropping last month — a decision that ruled solely that there was no federal constitutional right to abortion — abortion apologists had likewise filed lawsuits in Florida and Michigan in anticipation of the Supreme Court overturning Roe and Casey, arguing those states’ respective constitutions contained a right to abortion.
Just as five justices in Roe commandeered from the people the authority to regulate abortion through the “exercise of raw judicial power,” the abortion lobby demands the justices of the states’ highest courts do the same. While Dobbs accelerated the left’s litigation efforts, abortion apologists have been turning to activist state court judges for decades, seeking declarations by those individual high courts that their state constitutions compel an abortion-on-demand regime.
To date, this strategy has succeeded in least nine states, with the highest courts have declared that a state constitutional right to abortion exists — and a “right” that far surpasses the framework that previously controlled in Roe and Casey.
For instance, in Alaska, based on a supposed state constitutional right to abortion, courts have struck down legislation requiring parental consent and parental notification, Furthermore, under the Alaska constitution, according to the state courts, there is a right to taxpayer-funded abortion. California did almost the exact same thing. Florida courts had similarly declared parental-consent and parental-notice laws unconstitutional under its the state constitution.
In Iowa, the state’s constitution was held to invalidate a 72-hour waiting period, while the courts in Montana, declared unconstitutional the state’s law requiring only physicians to perform abortions. “Tennessee struck down informed consent and waiting period” provisions, while Massachusetts, Minnesota, and New Jersey courts have held that their respective constitutions require taxpayer funding of abortions. Massachusetts also struck a parental-consent statute and New Jersey a parental-notice law. “All of those statutes and regulations would have been upheld under Casey, but were struck down under independent state constitutional analyses.”
A Meeting with Washington
The abortion lobby’s success in installing an abortion-on-demand regime through litigation and activist justices is not limited to blue states, however. In 2019, two abortion providers prevailed using that same strategy in conservative Kansas, when in Hodes and Nauser v. Schmidt, they argued the state’s ban on dismemberment abortions — those in which live human beings are killed by being ripped apart limb by limb — violated the state constitution. The Kansas Supreme Court, which included four justices appointed by Democrat Gov. Kathleen Sebelius, a supporter of legal abortion, agreed and held that the state constitution provided a right to abortion.
Kansans, “who have consistently elected one of the most pro-life and pro-active state legislatures in this country,” immediately moved to counter the judicial activism that led to the discovery of a right to abortion buried in the state’s 150-plus-year-old constitution by seeking to amend it. And on August 2, 2022, citizens of the midwestern state will vote on the Value Them Both Amendment, which, if passed, will amend the Kansas constitution to clarify that there is no state right to abortion and that the people of Kansas, through their elected state legislators, retain the right to pass laws to regulate abortion.
Passage of the Value Them Both Amendment would not dictate abortion policy but would return to the Kansas Legislature the authority to regulate abortion that the state Supreme Court had wrested away from it in Hodes. In turn, Kansans, through their exercise of the franchise and the election of lawmakers to represent them, could decide the permissibility of abortion and any limitations on it.
Unsurprisingly, the abortion lobby opposes the Value Them Both Amendment because it knows Kansans would never vote for the extreme abortion regime forced upon the state by a handful of state Supreme Court justices. Laws establishing waiting period or parental-notification requirements — laws declared unconstitutional under other state constitutions — are solidly mainstream. Likewise, voters overwhelmingly oppose using tax dollars to pay for abortions, but again, under the reasoning of Hodes, the state must pay for abortions.
While the abortion lobby opposes passage of the Value Them Both Amendment, logically Kansan legislators should strongly support its passage because it would return the authority to make the laws to the legislative branch. Top Kansan Democrat legislators oppose the Value Them Both Amendment, however, demonstrating that they put abortion above the proper functioning of their representative democracy.
Top Kansan Democrat legislators also value abortion more than state’s rights and federalism, as demonstrated by the virtual gathering eight leading Democrat lawmakers made to D.C. last month to coordinate with White House officials on their opposition to the Value Them Both Amendment. Kansas Senate Minority Leader Dinah Sykes, House Minority Whip Stephanie Clayton, Senate Minority Whip Pat Pettey, House Minority Caucus Chair Barbara Ballard, Senate Agenda Chair Marci Francisco, and Reps. Sydney Carlin, Gail Finney, and Christina Haswood all joined a meeting with the Biden administration’s Gender Policy Council Director Jennifer Klein and Intergovernmental Affairs Director Julie Chavez Rodriguez.
While few details were released about the meeting, a readout of the event made clear the focus concerned the upcoming vote on the proposed amendment to Kansas’s constitution. But what business is that of the White House? State legislators properly focused on their role as representatives of Kansans should disdain federal encroachment in matters of state law. That the top Democrat state legislators seek the Biden administration’s involvement tells their constituents everything they need to know about where the priorities of those lawmakers lie: with ensuring Kansas’s extreme abortion regime remains unchecked.
It is not merely their recent virtual brainstorming session with D.C. insiders that exposed the skewed priorities of these lawmakers. Rather, Kansas Democrats serving in the state House and Senate revealed they put the national party over their local constituents.
“Not one Democrat, including those who hold themselves out as pro-life, voted in favor of the Value Them Both Amendment,” Elizabeth Kirk, a researcher and lecturer at Columbus School of Law at the Catholic University of America and director of the Center for Law and the Human Person, told The Federalist.
Kirk, who testified before the Kansas Legislature during hearings on the proposed constitutional amendment, stressed the irony of the situation. “Many of the same legislators who voted in favor of the dismemberment abortion ban voted against placing the Value Them Both Amendment on the ballot, when all the amendment does is return the power to the legislative branch to regulate abortion.” Kirk added that for Kansas’s supposedly pro-life Democrats to abandon their principles shows just how strong the allegiance to abortion is to the party.
On August 2, 2022, ordinary Kansans will show whether they share that allegiance when they decide the fate of the Value Them Both Amendment. And while they may not realize it, they will likely also be forecasting the future of federalism and representative democracy when it comes to abortion. For where Kansas goes, so too likely will the country.
This article has been revised to note that the meeting about how to kill babies was held virtually, not in person.