By Dave Andrusko
We’ve posted multiple stories on that head-scratcher of a decision by the Kansas Supreme Court concluding that nestled away in the state constitution, hidden from view for a 170 years, was a “right” to abortion.
And we’ll write about the 6-1 decision many more times for all the reasons we’ve discussed in previous posts and again today.
What prompted this story was an dazzling analysis by Elizabeth Kirk that ran yesterday in The Public Discourse under the headline, “The Kansas Supreme Court Has Declared a ‘Natural Right’ to Abortion.” Here are just a few (of many possible) considerations Kirk raises.
Referring to Section 1 of the 1859 Kansas state constitution, the six justices concluded that the right to abortion was lurking in the word “liberty” (as in “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness”). Kirk keenly observes
Declaring abortion to be among Kansans’ “fundamental rights,” the court held that any restriction on abortion is subject to “strict scrutiny,” requiring the law to further a compelling government interest and to be narrowly tailored to that interest. In so holding, the court imposed a standard on abortion laws that is stricter than the current federal one (the “undue burden” standard of Casey).
As one commentator shrewdly observed to me privately, “When a state supreme court – in essence – criticizes the U.S. Supreme Court as not being pro-abortion enough, things have turned really, really bad.”
Unlike either the strict scrutiny of Roe or the undue burden of Casey, the standard gives no greater weight to the state’s interests as the child’s development progresses. Presumably, the state of Kansas must meet the strict scrutiny standard for any regulation on abortion, including those related to maternal health, regulation of the medical profession, public funding, informed consent, parental consent, or an interest in the child’s “potential life,” whether in the first trimester or in the birth canal.
Bear in mind the law Justices Marla Luckert, Lawton Nuss, Carol Beier, Dan Biles, Eric Rosen and Lee Johnson took two years (and 199-pages) to write dealt with banning the practice of dismembering large, living unborn children with techniques that remind you of nothing so much as the final scene in “Braveheart” in which William Wallace (Mel Gibson) is hanged, disemboweled, beheaded and quartered.
One more. Kirk quotes arguably the key paragraph in Hodes & Nauser, MDs v. Schmidt.
Denying a pregnant woman the ability to determine whether to continue a pregnancy would severely limit her personal right of autonomy. And abortion laws do not merely restrict a particular action; they can impose an obligation on an unwilling woman to carry out a long-term course of conduct that will impact her health and alter her life.
Kirk brilliantly dismantles the assorted hyperbole and attending nonsense, adding this very insightful paragraph from legal scholar Erika Bachiochi:
It is not abortion restrictions that deny [equal] autonomy to women: the state of pregnancy itself points to the biological fact that, when pregnant, a woman is not autonomous. She is carrying a new, albeit dependent and vulnerable human life within her. Thus, unlike a man who has fathered a child, a pregnant woman cannot simply walk away: to approach the desired autonomy of the child-abandoning man, she must engage in a life-destroying act.
“It is a peculiar breed of feminism that relies on the subordination of and violence against another class of human beings in its efforts to elevate women.”
Which, of course, is a foundational contribution of pro-life feminists. What kind of “autonomy” is exercised by subordinating and committing violence against the “dependent and vulnerable human life within her”?
There is much more to learn from Kirk and, time permitting, I will return to it again. In the meanwhile, I strongly encourage you to read her essay for yourself.