Promoted from the diaries by streiff. Promotion does not imply endorsement.
In a 6-1 decision today, the Supreme Court of Kansas dealt a blow to the rights of the unborn by striking down a 2015 law that banned “dilation and evacuation” abortions, also known as partial birth abortions. These procedures are so abhorent, grisly and nauseating that they are the only abortion actually banned by federal law. The decision is based on the state’s constitution granting rights to women (which it explicitly does), and the court then extrapolating these rights to include rights to “personal autonomy” and “family planning”. Obviously, this is some creative judicial activism, as Article XV, Section 6 of the state’s constitution, detailing the rights of women in the state, does not include these. Here are some pertinent facts.
- As noted above, it appears that all the abortions legalized under Kansas law are still a federal crime, via the Partial Birth Abortion Ban of 2003. So technically, it’s not clear whether any new abortions have been legalized. However, to the extent that the feds do not enforce the PBAB, more may occur.
- This appears to set a very bad precedent, as it opens up the way for the abortion movement to challenge legal restrictions under state constitutions, which are not reviewable by the federal courts. If they can win in Kansas, it’s plausible they can win in many more red states.
- Kansas selects its state supreme court via the “Missouri Plan“, as do 16 other states. Personally, I hate this method, and I have for much longer than this decision has been issued. It essentially gives half the composition of the court to the legal profession, by way of the state bar association. Not only do bar associations tend to be very liberal, they are also entirely unaccountable to the people. This method completely immunizes half the state judiciary from popular expression in any way. This is much more elitist than our federal system, which gives lifetime appointment by the elected branches. The federal system at least reflects popular sentiment, just with a very long time lag.
There’s not that much more I can say about this, other than that it’s very sad, and it will make the pro-life task much harder. Not only do we need to win federal elections and in federal courts now, we also need to amend several state constitutions to change the method of their judiciary selection. It’s going to be a heavy lift. So it’s a setback, but as always, we take courage and pray.