Update: Feb. 5, 2020 – Constitutional Amendment
I hope this finds you in good health and spirits.
Writing this letter fills with me unease. I must address an issue on which we might disagree, and upon which some of you may have strong, impassioned feelings. I write both to explain the reasoning behind my position, and to preserve our friendship.
You’ve no doubt heard there’s an attempt to change the Kansas Constitution, and place on the August ballot that question for voters. This is driven by a Kansas Supreme Court ruling that found our Constitution guarantees the right for women to control their reproductive systems. In other words, abortion. No other issue in my lifetime has ignited such division between the people of our Great State.
I will soon cast a vote in the Kansas House of Representatives on this issue. It is not a vote I want to take, nor an issue I elevated. It has been hoisted onto us. I would rather avoid the distempered discussion this will force, and I fear the vote may inflame natural divisions inherent in our governing body. Nevertheless, I will cast a vote – because that is the duty and responsibility that comes with the privilege of serving in this office. I plan to vote “Nay.”
The framers of our country, and our state, held more wisdom than I could ever hope to possess. If we are to change their guiding documents, it deserves all the care I can offer. I thought it wise to read the underlying court ruling, and I was right to do so. It explained history I hadn’t known, and provided a robust understanding of the reason for, and against, the ruling.
In 2015, legislators banned a specific procedure known as D&E (dilation and extraction). I’ll be honest, it’s hard to read about this method. But it helped me better understand the objections you hold. However, my conversations with constituents inform me that abortions of this sort are not done by choice, but by heartbreakingly tragic necessity. In this case, doctors argued banning this procedure forced them to rely on other, still legal, methods, that are not safe for the mother – making a terrible situation even worse.
The court found that Section 1 of the Kansas Bill of Rights provides all Kansans, including women, “are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.” In fact, the court found this is a fundamental right – as fundamental as the right to assemble, to speak freely, or to bear arms. But it is not an absolute right – and that allows the legislature to set reasonable regulations, restrictions, and protections. Claims that the court’s ruling expressly prohibits any action from the legislature are patently false.
This proposed amendment does not directly change the way abortion is addressed in Kansas statute. It instead carves out an area in which the legislature has pre-eminent authority to make laws that can’t effectively be reviewed by the courts. It states “the people, through their elected state representatives and state senators, may pass laws regarding abortion…” This wording is seemingly based on the opinion of the lone dissenting justice in the case, who spelled out a theory in which the legislative branch holds primacy over the judicial branch.
Justice Caleb Stegall opened his dissenting opinion with: “This case is not only about abortion policy—the most divisive social issue of our day—it is more elementally about the structure of our republican form of government.” That is the true issue here.
Under Stegall’s interpretation of history, political philosophy, and our Kansas Constitution, the legislature’s actions must be presumed to be Constitutional – because this branch is a political extension of the public. This legislative supremacy can be altered only when laws circumvent structural Constitutional boundaries. Such a restraint on our guiding document presumes the messy and unpredictable nature of the legislature will always work as it should and accurately reflect the will of the people. We know that’s not always the case, and those in the legislature know that four people in leadership have the power to elevate legislation against the body’s wishes or halt legislation supported by most elected representatives and senators – who, as Stegall argues, serve as an extension of the people.
This legal reasoning is dangerous and threatens the ability of the Constitution to constrain extremism of any sort. It would give inordinate and unchecked authority to the legislative branch. It also creates unequal Constitutional protections – men will never be affected by this change, while every woman in Kansas will be subject to legislative whims.
Once we cross this threshold to distinctly spell out supreme legislative authority over one right, we have no promise that won’t leach to other rights. This legislature has already made clear its desire to circumvent the court’s involvement in Constitutionally protected school funding. I could cross out the word “abortion” on that amendment and easily replace it with “firearms,” “speech,” “assembly,” or “religion.” That, to me, is terrifying. As Stegall pointed out in his dissent “the tyranny of the Legislature is really the danger most to be feared.” I agree and cannot support giving the legislature unchecked authority. I have seen its mechanisms, and the lustful collectors of power who work to hold the levers.
Additionally, I am deeply concerned about placing this amendment for public vote on a primary election ballot. Historically, voter turnout in these elections is miserably low – so low that the decision would be made by a very small minority. Also, roughly a full third of our residents reject political affiliation. They habitually do not participate in primary elections. To argue that a decision made on a primary ballot is the voice of the people is disingenuous. It’s the voice of a few people – and I suspect the crafters of this amendment are less interested in true democratic participation than in choosing their voters. This is a form of political gamesmanship and disenfranchisement that should not be tolerated.
It’s worth noting the exclusive authority this amendment grants to the legislature to regulate abortion likewise provides exclusive authority to de-regulate abortion. One problem with power is that those who have it always believe they will wield it. History has proven this untrue. Today’s legislature largely aims to regulate an end to abortion. But a legislature in some not too distant future might see the matter altogether differently. Armed with this Constitutionally enshrined power, we could see the proverbial pendulum swing drastically in the other direction.
Those are the bulk of my concerns, laid out as plainly as I can make them. I don’t know one person who “likes” abortion. I certainly don’t, and I know a number of people who struggle to reconcile their faithful feelings and beliefs with the knowledge that biology sometimes brings unpredictable complications that force unbearable decisions.
On this topic, I know some will disagree. I hope that I’ve helped you understand why I plan to vote the way that I will. And I hope I have compassionately conveyed that I understand the nature and basis of your disagreement. Notwithstanding, we have a rich history behind us, and much more to reach in front of us. Perhaps in this moment, we must walk different paths. But I have faith our shared experiences and values will soon rejoin our journey forward.
Respectfully your friend,