About the Kansas Abortion Vote

[Trivia: can you name the 6 NASA Space Shuttles?]

Shall the following be adopted?

§ 22. Regulation of abortion. 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.

This would have been ratified into Kansas’ state constitution earlier this week had Kansans voted differently than they did. For those at home, “Yes” was the pro-life option, while “no” buttressed a ruling from 2019 by the Supreme Court of Kansas that discovered a right to abortion in the state’s bill of rights. Let it never be said that folks in flyover country aren’t the brightest, only because the Supreme Court of Kansas took until 2019 to discover such a right. And to do so in such a text as, “Equal rights. All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”

Seriously. That’s the line that the Kansas Supreme Court used 3 years ago to tie the hands of the legislature on this subject (it is only prohibited after week 22). Their opinion opens,

Section 1 of the Kansas Constitution Bill of Rights provides:"All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness." We are now asked: Is this declaration of rights more than an idealized aspiration? And, if so, do the substantive rights include a woman's right to make decisions about her body, including the decision whether to continue her pregnancy? We answer these questions, "Yes."

This is irresponsible writing undeserving of the word “reasoning.” This is wishful thinking that could guarantee any number of rights much more meaningfully than it ever could the right to kill an innocent human being. May I sell my labor for a price that I deem fit or for as many hours/week as I deem fit? May I subdivide a plot of my own land and sell it to different buyers? May I, for that matter, sell baby formula with ingredients listed on the label in a way that isn’t “the exact order prescribed by FDA regulations”? American corporate life is overrun with governmental rules telling us we don’t have liberties; the judiciary exists to apply written law, not to write blank checks vetoing them willy-nilly.

We conclude that, through the language in section 1, the state's founders acknowledged that the people had rights that preexisted the formation of the Kansas government. There they listed several of these natural, inalienable rights—deliberately choosing language of the Declaration of Independence by a vote of 42 to 6.

Included in that limited category is the right of personal autonomy, which includes the ability to control one's own body, to assert bodily integrity, and to exercise self-determination. This right allows a woman to make her own decisions regarding her body, health, family formation, and family life—decisions that can include whether to continue a pregnancy. Although not absolute, this right is fundamental. Accordingly, 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. And we thus join many other states' supreme courts that recognize a similar right under their particular constitutions.

I’ve said before that the Left (and other people) project because they assume that other people function the same way they themselves do. Democrats have been calling Dobbs an “extreme decision” and an “unconstitutional action.” It’s manifestly not. This, on the other hand, is one of the most extreme and unconstitutional things I’ve ever read.

Anyway. Earlier this week, Kansans voted to demur from fighting this decision by an almost 3-2 margin. There have been a lot of opinions. I want to highlight one good one and caveat one problematic one.

Ed Whelan, a lawyer with the Ethics and Public Policy Center, opined, “One possible lesson from the Kansas shellacking: Voters facing what they see as a choice between two imperfect options on abortion policy--one too restrictive, one too permissive--will go with the one that is too permissive. Pro-lifers need to meet the voters where they are.” I think this is a pretty sound read of the ground and important to inform legislative moves in the short term. In the long term, of course, the goal is legal enshrinement of total protection, but in the meantime, banning abortion at, say, 15 weeks is better than nothing. (Abraham Lincoln’s Emancipation Proclamation only had the executive branch authority to ban slavery in the states that were in open rebellion—slavery actually remained legal for a little longer in the slave-holding Union states of Missouri, Kentucky, Maryland, and Delaware.) I think this especially in light of the national polling on the subject that I’ve mentioned previously:

(“Green” is the most pro-life opinion, etc.)

I saw another opinion calling for measured optimism. Alexandra DeSanctis Marr, who does lots of good writing on this subject, opined at National Review,

Abortion supporters have been quick to cast the outcome as an indication that abortion — and, more specifically, the fact that the Supreme Court overturned Roe v. Wade — will be a major factor in the Democrats’ favor in the midterms. Politico, for instance, characterized the result as “a political earthquake with the potential to reshape the entire midterm campaign.”

This appears to me to be a major misreading of last night’s results. For one thing, it’s fair to say that the question of what the amendment actually would’ve done was somewhat murky for many observers and voters. As I noted in a piece on the ballot initiative last week, opponents of the amendment united in lockstep around the falsehood that a “yes” vote was essentially a vote to ban abortion in Kansas. For instance, a coalition led by Planned Parenthood, NARAL, and others in opposition to the amendment branded itself “Kansans for Constitutional Freedom.” In reality, the amendment would’ve taken Kansas back to abortion neutrality, allowing lawmakers to legislate on the issue — though it’s likely that the legislature’s slant would’ve quickly resulted in a much more pro-life status quo than is currently permitted.

In other words, supporters of abortion effectively won the messaging battle.

(Emphasis added.) I sympathize with the concern that elected Republicans are going to think that abortion is a losing issue and abandon it along with all their other forsaken culture-war issues. But I think that it’s too much to comfort ourselves with the fact that pro-abortion folks “just” won the messaging battle. Those folks are superior at messaging; that’s not just a fluke that applied to Kansas. We can’t expect it to just go away.

One other note: people were commenting on the confusing language of the measure. I get that—I subjected you, dear Reader, to the full quote at the outset to feel what many Kansans must have felt. It’s not a great ballot measure, that’s for sure.

So I wondered whether the language was actually confusing, and if so, confusing in a way that systematically helped the abortion side or just muddied the waters. So I pulled county-level results from the New York Times both for the abortion measure election and for Kansas’ 2018 statewide governor’s race, which was won by a Democrat. Here’s a scatterplot of the % that voted for abortion (y-axis) graphed against the % of the vote that the Democratic nominee for governor captured in 2018 (specifically, the % of the vote of those who voted for 1 of the 2 major parties—an Independent captured fully 6.5% of the vote). The diagonal line is y=x, where the value on one axis equals the value on the other.

I did this and then realized that I didn’t know what it showed. It shows that most of Kansas’ 105 counties were more pro-abortion than they were pro-Laura Kelly (who is now governor)—but we already would have expected that, more or less.

The other variable that might be interesting to consider is turnout: there were 960,000 votes cast (for the 2 major party candidates) in 2018, while “only” 915,000 votes were cast for this ballot question earlier this week. It could be a real revelation if significantly more Republicans turned out for this election, and the results wound up as resoundingly in favor of abortion as they did, but that’s just a possibility.

More than anything, though, I’m just reminded of the referenda that were held in Ireland. In 1983, Ireland held a referendum on adding to their constitution the text, “The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.” The Irish made that law by a margin of 2-1.

In 2018, Ireland held another referendum to repeal that amendment. It passed, by the same margin pointing in the opposite direction. Sometimes Western Civilization develops and grows, and sometimes it just breaks your heart.

~

The Space Shuttles: Enterprise, Columbia (exploded in 2003), Challenger (exploded in 1986), Discovery, Atlantis, and Endeavour.