Vote on abortion amendment necessary because Kansas Supreme Court acted as lawmakers
On Jan. 28, a supermajority of the Kansas Senate voted to place an amendment to the Kansas Constitution on the August 2022 ballot. The text of the amendment states, as is self-evident from the document, that the state constitution does not address abortion.
The proposed amendment is a necessary public rebuke to the Kansas Supreme Court’s 2019 decision in Hodes & Nauser v. Schmidt, which read into our state constitution a right to abortion even broader than that in the U.S. Constitution, as decided in 1973’s Roe v. Wade. The Hodes ruling, which does not have grounding in the text of the Kansas Constitution, undermines the court’s independence from politics, a critical feature of a well-functioning democracy.
In Hodes, abortion doctors challenged as unconstitutional a law outlawing second-trimester dilation and evacuation abortions, which in some instances include dismemberment, except when necessary to preserve the mother’s life or to avoid causing her serious physical impairment.
Judicial review, the power to declare a law unconstitutional, is vested in the courts. The least political branch of government, the judiciary can or should exercise that power objectively, without political favor. This ensures that we are a nation ruled by laws, not men. But in Hodes, six of seven justices turned judicial review on its head, making their own law, not objectively interpreting the Kansas Constitution ratified by the people.
Common sense and centuries of Anglo-Saxon jurisprudence direct that in interpreting laws (including constitutions), courts should look to the plain meaning of the words as understood at the time of enactment. The word “abortion” is not in the Kansas Constitution. Moreover, in the seven years surrounding its ratification, Kansas territorial and state legislatures enacted anti-abortion laws four times, defining abortion with the intent to “destroy” a “quick child” (that is, a fetus developed to the point of moving in the womb) as manslaughter. Those anti-abortion laws remained unchallenged for more than a century because no one fathomed that the state constitution included a right to abort. Clearly, the omission of a right to abortion from the constitution was not an oversight; it was intentional.
Nonetheless, the Hodes majority, agreeing with the abortion doctors, divined the right in the amorphous, Enlightenment-inspired phrase of the “inalienable natural right” to liberty found in the Kansas Bill of Rights. But the majority’s survey of writings by James Madison, British philosophers and other legal commentators on the meaning of this phrase yields nothing. Like the state constitution itself, the cited ruminations speak not once of abortion.
Under the guise of judicial review, six justices have imposed their view of what the law should be on all of us. But philosopher kings they are not; they are judges.
The damage goes beyond the decision itself. When courts ignore the words of the law and rely on extraneous sources — such as philosophical musings or their own subjective view of rightness or fairness — they become lawmakers. U.S. Supreme Court Justice John Harlan II, in his “Selected Opinions and Papers,” observed that judicial lawmaking brings about a “lessening, on the one hand, of judicial independence and, on the other, of legislative responsibility, thus polluting the blood stream of our system of government.”
In his authoritative book on interpreting legal texts, U.S. Supreme Court Justice Antonin Scalia explained: “When judges fashion law rather than fairly derive it from governing texts, they subject themselves to intensified political pressures — in the appointment process, in their retention, and in the arguments made to them.”
And that has happened here. Hodes and other activist decisions in recent years have engendered proposals to replace the merit-based system for selecting Kansas Supreme Court justices with elections, turning judges into politicians. The sad irony is that in taking hot-button issues out of the political arena by “constitutionalizing” them without a solid textual basis, the court has undermined its independence and ability to interpret laws without political favor or concern.
Next year, Kansans will have an opportunity at the ballot box to take back their constitution. To avoid further erosion of its independence, the Kansas Supreme Court should get back to interpreting the law and stop making it.
Bob Lewis is an attorney in Garden City, Kansas.