The proposal was an attempt to overturn a 2019 ruling by the Kansas Supreme Court, which held that the right to an abortion was “fundamental” under their state constitution. The amendment would have made clear that Kansas’ constitution doesn’t guarantee a right to abortion or government funding for it.
The specific proposal was called the “Value Them Both Amendment,” which is a smart bit of marketing. Although many ballot initiatives are confusingly written, this was pretty straight-forward. It said, simply,
Because Kansans value both women and children, the constitution of the state of Kansas does not require government funding of abortion and does not create or secure a right to abortion. 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, including, but not limited to, laws that account for circumstances of pregnancy resulting from rape or incest, or circumstances of necessity to save the life of the mother.
That proposal seems quite moderate, and it is similar to the Supreme Court’s holding in Dobbs with respect to the federal constitution. It’s very disappointing to see it defeated by the voters, and by such a large majority.
What Does This Mean for Kansas?
There is a lot to learn from this defeat on the political and tactical level. Major issues need to be discussed, particularly effective messaging and making sure we don’t get too far out ahead of public opinion.
But I want to focus on the legal side, particularly on the significance for state constitutions. To do that, we have to understand what it means for Kansas itself.
The failure of the amendment means that abortion is still going to be treated as a “fundamental right” under their state constitution. That means that any state regulation will be subject to “strict scrutiny” by the courts. As the Kansas Supreme Court explained, “the State is prohibited from restricting this right unless it is doing so to further a compelling government interest and in a way that is narrowly tailored to that interest.”
That’s the most difficult standard for laws to meet. There’s a reason that one Supreme Court justice once said that the test was “strict in theory but fatal in fact.” As a result, even though the U.S. Supreme Court returned authority to regulate abortion to the states in Dobbs, the ability of the Kansas legislature to do so will be severely limited by its state constitution as interpreted by its courts.
That’s potentially a big problem. Right now, Kansas has extremely positive laws protecting unborn life. Americans United for Life ranks them seventh in the nation (see https://aul.org/spotlight/kansas/). They have a wide array of laws: a ban on abortions after viability, a ban on partial birth and telemedicine abortions, a requirement that a doctor provide care to a baby born alive during an abortion, a ban on sex-selection abortions, robust informed consent rules including a 24-hour waiting period and a sonogram requirement, parental consent and safe haven laws, etc.
That’s an impressive list. But the previous Kansas Supreme Court decision, and the failure of this “neutrality amendment”, puts their future in serious doubt. Many of them are already under litigation, and it’s likely that more will be challenged.
If the state courts of Kansas apply the “strict scrutiny” test rigorously, it is possible that all these laws will meet the same fate as similar laws under Roe—judicial nullification.
For the cause of human life in Kansas, that would mean that Dobbs was a pyrrhic victory—at best.
As with Kansas, so with every state. If other courts recognize a broad state constitutional right to an abortion, then it’s going to be very difficult, if not impossible, to protect unborn children effectively.
To keep track of the significance of state constitutional law on abortion, I recommend that everyone pay close attention to the writings of Paul Benjamin Linton. He is absolutely the expert in this field, and he has also been a contributor to the Human Life Review.
According to an upcoming law review article by Mr. Linton, here is the current situation (although I have to note that I have counted the states slightly differently from him):
- Six states have “neutrality” provisions in their state constitution (stating that nothing in in their state constitution guarantees a right to abortion)—Arkansas, Louisiana, Rhode Island, Tennessee, and West Virginia. (Kentucky will vote on a proposal later this year, and Iowa may have one on the ballot in 2023.)
- No state constitution has an explicit guarantee of abortion rights in their state constitution. (New York may have one up for a vote as soon as 2023.)
- Eleven state supreme courts have ruled that there is an implicit right to an abortion in their constitution—Alaska, California, Florida, Iowa, Kansas, Massachusetts, Minnesota, Mississippi, Montana, New Jersey, and New York.
- Four state supreme courts have rulings that suggest that they may also recognize an abortion right in their constitution—Arizona, Indiana, New Mexico, and Vermont.
To sum up: only about fifteen states have, or are likely to have, constitutional protections for abortion. Unfortunately, those account for almost half of the abortions that take place every year. No more than eight either have or will have neutrality provisions in the near future.
So that leaves over half of the states in which the issue is not settled. Lots of abortions take place in these new battleground states. That’s where the pro-life movement, and their allies in government, have to fight over the correct interpretation of their state constitutions and bills of rights.
This may all sound like obscure legal “inside baseball.” And to a certain extent it is. In many states, their constitutions have rarely been interpreted in depth. All too often, state constitutions are an afterthought at best in litigation, while all the attention goes to the federal constitutional issues. Few scholars have written about state constitutions.
But the Kansas vote shows us very clearly that the battle over state constitutions is no obscure academic question. It is going to dominate the future for our movement. There is a lot at stake.