Arguing About Abortion (but Actually Mostly Other Things) in Kansas

[I was asked to provide some commentary on the recent abortion decision by the Kansas Supreme Court which received so much national attention. My column appeared in the Wichita Eagle on Saturday (read it here, complete with an incorrect file photo of the current Kansas Supreme Court justices), which surprised me, as I expected it to run today. Anyway, as usual, I actually have more to say, so here we go, one day late:]

A little over a week ago, the Kansas Supreme Court handed down its decision in Hodes & Nauser v. Schmidt, the case which obliged them to rule on whether or not Kansas’s state constitution included the right for a woman to have an abortion. It includes three different opinions–one by a five-person majority, one concurrence by Justice Dan Biles, and one dissent by Justice Caleb Stegall–spread over 199 pages, all of which I read last weekend, because I'm that kind of nerd. Judging by my scribbled notes all over those pages, I would say the opinions are filled with careful, challenging, and sometimes frustrating legal argument. Whatever else you may think of the results, I can assure you that the decision here was anything but simple.

Yet last Friday, my own west Wichita representative in the Kansas House, Dan Hawkins (hi Dan!), denounced the Court’s ruling in highly simplistic terms, calling it an act of “dictators” bent on “dehumanization” in a Wichita Eagle column. His argument was impassioned, and not, I think, entirely wrong--but fairly tendentious all the same. Since Kansas Supreme Court justices never comment on their own opinions, I figured I may as well attempt an explanatory retort.

But first, inveterate academic that I am, I can't help but include an unfortunately-lengthy caveat on the whole matter of the judiciary's role in American democracy--which, by the way, is actually pretty central to the dissent's whole argument--just in case anyone is confused about where I'm coming from. I long have been, and I remain, despite much rethinking and fine-tuning of my opinions over the years, still basically suspicious of judicial review (as many blog posts of mine over years have made clear). I recognize that counter-majoritarian tools are indispensable in a democratic system which takes the idea of basic rights even minimally seriously; the question is, if the governing system one is part of also takes genuine participatory (and thus invariably majoritarian) democracy even minimally seriously--which generally I think it should--what those counter-majoritarian tools should consist of. I am unpersuaded that the civic costs of judicial review, as it has come to be exercised, are always worth its benefits. That is not to say that, absent a complete reworking of the bases upon which engaging in democratic activity under out constitutional system, we should simply get rid of it; my point is simply to reiterate its (I think irreparably) problematic character, not to deny its inextricable connection to the only kind of political functioning currently available in the United States. One should always keep in mind that judicial review didn't have to be institutionalized in the overwrought, often desperate way it has been; the U.S. Constitution, on my reading, certainly doesn't warrant it, and American history provides numerous instances where one could imagine the relationship between the courts and the legislator-electing public developing along different lines. Consider, for example, Abraham Lincoln's response to the precedents supposedly laid down by the Supreme Court's infamous decision in Dred Scott v. Sandford:

Judicial decisions are of greater or lesser authority as precedents, according to their circumstances. That this should be so, accords both with common sense, and the customary understanding of the legal profession. If this important decision had been made by the unanimous concurrence of the judges, and without any apparent partisan bias, and in accordance with legal public expectation, and with the steady practice of the departments throughout our history, and had been in no part based on assumed historical facts which are not really true; or, if wanting in some of these, it had been before the court more than once, and had there been affirmed and re-affirmed through a course of years, it then might be, perhaps would be, factious, nay, even revolutionary, to not acquiesce in it as a precedent. But when, as it is true we find it wanting in all these claims to the public confidence, it is not resistance, it is not factious, it is not even disrespectful, to treat it as not having yet quite established a settled doctrine for the country.

I have no idea how any of the above could have been institutionalized (requiring controversial cases, or those that split 5-4 or otherwise along recognized party lines, to be re-argued before a different set of justices, perhaps? but that would necessitate much more frequent turn-over in the federal judicial system, perhaps through imposing term limits on Supreme Court and lower court judges?). But just because I can't think of how to make it work, doesn't mean there isn't any possible way to institutionalize it. But in any case, that's where I stand--and hence, as I'll explain, I have a certain among of sympathy for the dissent. But also, please note: this case was not, strictly speaking, a full act of judicial review. Rather, this was a case of the Kansas Supreme Court being obliged to provide an answer to a question which would then be relevant to any judicial determination of the constitutionality of a law. And that, at last, leads me back to the decision itself, and Hawkins's reaction to it.

The first paragraph of the 5-justice majority's opinion defines the goal of their argument: "Section 1 of the Kansas Constitution's 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 those 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'" (pg. 7).

The Kansas Supreme Court's decision is obviously a win for those who defend abortion rights, and a loss for those who oppose the extension of those rights (with both groups constituting roughly half of Kansas's population). But does that mean the decision by the majority has opened the door for “unrestricted late-term abortion up to the point of birth” in Kansas as Hawkins wrote? No, it does not--or at least, it only means it in the same sense that my having the freedom to grade my own students' exams opens the door to my deciding to arbitrarily flunk everyone who is less that 5 ft. in height. The simple fact is that any hypothetical changes to abortion laws in Kansas are a question for the future, and are by no means predicted by this decision. This is because the focus of this case wasn’t abortion policy at all, but rather the constitutional terms under which abortion policies are to be made--and as such, provides no ready-made path for anyone who wants to make specific policy changes.

The original argument behind the whole question brought before the Kansas Supreme Court was over what level of justification the state of Kansas must provide in passing a law which bans a particular type of otherwise legal abortion procedure (in this case, the undeniably gruesome but generally safe and reliable procedure normally used in those rare cases where late-term abortions are medically necessary because the baby is severely deformed or otherwise threatening the health of the mother). Having made their decision, the majority's decision sends the case back to district court, to be argued in light to their constitutional interpretation. They note that the lower court has “a heavy task ahead of it” (pg. 86), in that it will have to consider this Kansas law in the face of scientific advances in fetal viability on the one hand, and the clear right of women to control their bodies on the other.

So what about that right to bodily integrity or autonomy (the majority uses both without much clarity or distinction)? Hawkins is obviously correct in noting that the Kansas Constitution includes “no language of the sort.” Here is where things get interesting to nerds like myself to love to study such things. Abortion rights were established by the U.S. Supreme Court nearly a half-century ago in Roe v. Wade on the basis of the right to “privacy” which it interpreted out of other guarantees in the Bill of Rights--the (in)famous idea that privacy-related rights like that of free association, protecting one's property, insisting on remaining silent, etc., formed a "penumbra" that included within it a general right to privacy. Whatever your opinion about that bit of constitutional interpretation, it must be remembered that the Court modified it in the decisions which followed. Over the decades, various debates over privacy in regards to abortion has led that Court to develop a test which allows state legislatures to pass laws which restrict abortion rights in the name of protecting fetal life, so long as doing so does not pose an “undue burden” on a woman’s freedom of choice. That test, developed primarily by Justice Sandra Day O'Connor in Planned Parenthood v. Casey, remains the binding precedent for abortion policy today.

The majority on the Kansas Supreme Court acknowledges this line of reasoning, allows that the Kansas Constitution incorporates this currently reigning interpretation of privacy rights–and then dismisses it, actually writing that, while they hold this interpretation to be valid, they "need not recognize" it (pg.15). Instead, they argue that the Kansas state constitution provides something even stronger: an inalienable natural guarantee of complete bodily autonomy.

This is a rather audacious thing for a state court to claim, in particular because it introduces a host of questions that the Court provides no guidance for. For example, is “bodily integrity” to be understood as solely referring to the right of women to control their own pregnancies? Or might it also imply that any Kansas law or government office or place of public accommodation which puts restrictions on what people choose to do with their bodies–like, that I must clothe my body with a shirt and shoes if I want to be served, or that a child’s body must be vaccinated before she attends elementary school–should be presumed to be unconstitutional? The majority does gesture towards the sticky problem of mandatory vaccinations, but suggests that the principle of never causing "harm to the individual"--pg. 40--will provide clear guidance, a claim I strongly doubt.

In confess that here I am very sympathetic to the concurrence opinion by Justice Dan Biles, wherein he agrees with the majority that state abortion laws must take into consideration the rights of women, but then argues that elevating rights regarding something as fraught as abortion to such a high level, ignoring the definitions and qualifications which the U.S. Supreme Court has introduced in its decisions about privacy concerns, creates more legal problems than it solves. Biles is particularly good in pointing out that the majority seemed intent on resurrecting Roe-era "strict scrutiny" standards for evaluating abortion policies, but then provided no coherent guidelines for understanding how the right to bodily integrity should be applied to any particular case. After detailing what he considered (I think rightly) an unnecessary bridge too far beyond Casey's privacy-based undue burden standard, he comments "The trial court is going to have to make sense of this nuance, and I wish it luck, because I can't tell the difference" (pg. 96).

Finally there is the dissent. Hawkins condemns the majority for never addressing the elephant in the room: "the rights of the child" and “the loss of life that occurs when an abortion takes place.” But of course, the dissent didn’t address it either–because, again, that wasn’t what was legally at issue. I know Justice Caleb Stegall, and consider him a friend; I know he’s a committed Christian conservative on these matters, and some of his stray comments about the procedure which the state law banned make clear. But in crafting his tour de force dissent of this decision, he remained firmly focused on the case before him.

Thus he spent little time discussing abortion itself, and instead produced a historical and theoretical argument which presents rights as something citizens already possess, and thus may legislatively extend or limit them as they democratically prefer, rather than as something that reflect, to quote Stegall, “sea-of-fundamental-values” (such as an abortion-supporting right to bodily autonomy) which the courts must protect against invasive majorities (pg. 116). On this point, Hawkins’s column, like Stegall’s dissent, connects with an old and honorable argument--an argument that, as a matter of political theory, is as old as the notions of natural rights and democracy themselves, and as a matter of American political history, goes back to the debates over the Constitution by the Federalists and Anti-Federalists, and has continued in one fashion or another ever since. As someone who teaches these ideas regularly, I’m fascinated the dissent’s contribution to this debate. Personally, I find much of his theory highly persuasive--how could anyone like myself, who is basically suspicious of judicial review, not sympathize with his point? But I find myself questioning much of his history.

Not necessarily the detailed history he gives of the origins of the Kansas Constitution, and the descriptions of it by those who were contributed to its writing. Stegall sees this history as supporting the use of a "commonwealth lens" to assess government powers, thus suggesting that the rights included in the document's beginning were not individualistic natural rights but rather reflected "right of republican self-rule" (pgs. 133, 169). The majority obviously disagrees with him, though they seem to me much too quick to turn early Kansans into a bunch of modern Lockeans, judging every governmental problem they faced through contractarian, property-and-rights-based assumptions (hence the Court's ability to connect liberty with bodily self-ownership relatively quickly). But I'm no expert on Kansas judicial history, so I can't weigh in too much on that argument. I can, however, articulate my problems with Stegall's attempt to put what appears to my mind to necessarily issue in a strong strong states' rights (or at least Jeffersonian) argument into the language of Abraham Lincoln, presenting him as one who believed that rights were best understood as what results when "the people relinquished...a defined and limited measure of their pre-political sovereignty while retaining the rest" (pg. 148).

Of course, Lincoln was far closer to older, more republican understandings of democratic government than our much more complex, much more urbanized, much more diverse, and much more competitive and economically divided country presently allows, Moreover, he obviously (as I noted above) was no friend to the arbitrary judicial discovery of--or, as happened to be the case, withdrawal of--basic rights. The man obviously adored the legacy of Jefferson and took seriously his ideas. Still, I think the majority is obviously correct when they insist, in response to Stegall, that "Lincoln...would not be quite so dismissive...on the existence of equal 'natural rights,'" going on from there to quote Lincoln's famous conviction that the rights mentioned in the preamble to the Declaration of Independence (which are the same ones mentioned in the Kansas Constitution), and its promise of equality, were all meant to be aspirational and "of future use"--and thus not something necessarily subject to the give and take of community self-definition (pgs. 34-35). Lincoln gave us the Gettysburg Address, after all--a speech which reduced all the local democratic articulations of the general welfare and everything else tied up with the historical experience of republican self-government to a single "proposition." Consequently, I find Stegall's history more a distraction than an aide to his theoretical argument.

But at this point, the overall reality of the arguments happening in Hodes & Nauser v. Schmidt should be clear. They are mostly not, in fact, arguments about abortion. Rather, they are arguments about different philosophies of natural rights, about republican political theory, about constitutional interpretation and judicial precedents--about, in short, basic fundamentals regarding governing power. All of those things, given the particular structure of this case, will have significant impacts on abortion policies--but we don't know what those impacts will be, because all the Court has determined is how, in the state of Kansas, what one has to include when one argues about abortion, not how those arguments have to go.

The law is hard, and for better or worse (I think mostly for worse, but there's not much I can do about that), has become the place where we send our hardest disputes. That doesn’t mean we’re obliged to respect the decisions of any particular court, or the way it decides them; I certainly don’t. But rather than reducing the complexity of what courts do to simplistic political arguments, let’s at least credit them for taking seriously the particular questions before them. Then afterwards, once we've all done the reading and the thinking regarding what our judicial umpires have to say, we can let the political chips fall where they may.