What's Not The Matter With KS: Big Abortion Rights Win

“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,'” the opinion states. “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.’”

I referenced a major state win on abortion rights by the Kansas Supreme Court a few years ago.  A ballot measure, timed since more Republicans was assumed to be voting in the mid-summer primary as compared to November, was voted upon to overturn it:

“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.”

The referendum was rejected by 65/35 type margins.  Note Kansas can still "pass laws regarding abortion" in various ways.  For instance, there is a funding ban.  The state court opinion, in part recognizing understanding and power of women has developed a lot since 1860 or so, noted (quoting the above link):

That section, the state court ruled by a 6-to-1 vote, “affords protection of the right to 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.”

I just read a liberal's analysis of the problems of using substantive due process to uphold abortion rights.  It is a somewhat tiresome standard discussion, including not covering how use of some form of unenumerated rights started before the Civil War, and ignoring how the Lochner Era was more than use of the for a "right to contract" or something.  

A major argument was that minimum wage and maximum hour laws were "class legislation," which can be framed in an equal protection fashion. Also, there were things like "rate cases" to limit power to regulate railroad rates that were framed as procedural due process or Taking Clause type matters.  

I'm fine with using equal protection for abortion rights, but equality is a rather open-ended approach, especially if in the process you protect substantive rights like here.  The bottom line is that fundamental liberties not clearly enumerated will be part of how courts interpret the Constitution. And, ultimately, like Justice Harlan noted in his concurrence in Griswold, it is going to rest on the judicial restraint tendencies of judges.  

"Clear" or "limited" text is not going to save us.  The people at large, who help the courts know what the Constitution means, will play a major part.  They did not want to give the legislature here an open-ended power to limit abortion rights.  This is the sort of "federalism" (a nice empty term without line drawing -- I'm writing a separate blog entry on federalism for another website) that we need at the moment.