Abortion opponents in Kansas took up strategic positions Thursday along the Topeka street separating chambers of the Kansas Supreme Court and offices of legislators in the Capitol to express dismay at court decisions finding a right to abortion in the state constitution.
The rally hosted by Kansans for Life, attended by former Secretary of State Kris Kobach and Senate President Susan Wagle, took aim at the Supreme Court's affirmation of a lower court decision that the Kansas Constitution granted women a fundamental right to the procedure beyond the scope of the landmark U.S. Supreme Court opinion in Roe v. Wade.
Mary Kay Culp, with the advocacy group Kansans for Life, said foundation of that decision was passage by the 2015 Legislature of a ban, the nation's first, on so-called dilation and evacuation abortions. She accused Shawnee County District Judge Larry Hendricks of allowing attorneys representing the Center for Reproductive Rights of New York City to write Hendricks' ruling blocking the law.
The Kansas Court of Appeals deadlocked 7-7, and the state Supreme Court issued in April a 6-1 opinion upholding the lower courts and inviting a rebuke from Kansans for Life.
"They're saying any pro-life laws that end up over there are dead on arrival," Culp said. "They cut our elected officials out all together. It's really just an atrocity."
The state Supreme Court ruling meant abortion would remain legal in Kansas beyond possible action on a national level by the U.S. Supreme Court to reverse Roe v. Wade.
Kobach, who since leaving public office in Kansas has been providing legal counsel to an organization raising money to build a wall along the Mexican border, said the obvious next step on abortion in Kansas was to push a constitutional amendment through the Legislature and onto statewide ballots in 2020. He said the state Supreme Court relied on faulty logic in the decision.
"It's wrong, not only in the narrow sense of how they interpret the constitution to create this unwritten right to abortion, but it's also wrong in the sense that once you have supreme courts of states that feel free to just create new rights out of whole cloth then it knows no limit," Kobach said.
He said state courts could come up with "a whole bunch of ridiculous things" framers of the constitution didn't contemplate, suggesting a court might declare a constitutional right to smoke marijuana or commit suicide.
In addition to a constitutional amendment reversing the state Supreme Court in the abortion case, some legislators have discussed an amendment altering the method of selecting justices to the state's highest court. Under current law, governors have authority to appointment justices from a list of three finalists. Abortion opponents want to follow the process used for vacancies on the Kansas Court of Appeals, which combines nomination by a governor with Senate confirmation.
Senate Minority Leader Anthony Hensley, D-Topeka, said he would prefer questions about right to abortion be the domain of the U.S. Supreme Court. There is no justification, he said, to switch to the federal model of Senate confirmation for justices of the state Supreme Court, he said.
"I would be opposed to a constitutional amendment to change the way the Supreme Court is selected. The Washington, D.C., model isn't exactly what I'd call a model we should emulate," Hensley said.
House Majority Leader Dan Hawkins, a Wichita Republican who attended the KFL rally, said the challenge would be to secure the two-thirds majorities in the House and Senate for constitutional amendments. Once placed on Kansas ballots, a simple majority of people participating would decide the issue.
"Why wouldn't we let the public vote?" Hawkins said. "That's the ultimate democratic thing. I think we need to get it through here and let the public have its say."
Culp told about 75 people at the rally that Kansas proponents of constitutional amendments on abortion would need perhaps as much as the $2 million generated in Tennessee during a 10-year fight on abortion.