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Saturday, May 4, 2019

Abortion in Kansas

By:   John Andra
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Abortion in Kansas

On Easter Friday, the Kansas Supreme Court filed an opinion which held abortion is a "natural right." Hodes & Nauser, MDs, P.A., et al. v. Derek Schmidt, et al., Case No. 114,153 (Kan. Sup. Ct., April 26, 2019).

The opinion is remarkable for its legal fluency. Anyone familiar with the Court's output must wonder at its author. The opinion was filed "Per curiam," meaning it was authored collectively by the Court. But the gaps in law and logic are deftly handled, and the thing conveys such a diabolical confidence in deceit that it appears to flow from a power beyond the justices.

A detailed refutation of the opinion would be pointless. It is evident by now that American constitutional law is largely a matter of will, not reason. The desired result can be gained by any means necessary. One example here will suffice.

The Court explained that this sentence of the Kansas Constitution implicitly recognizes a natural right to abortion: "All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness." The Court did not once in its 87-page opinion examine the right to "life" which is explicitly protected in the same sentence. This is pure power, not legal judgment.

The opinion is nevertheless an interesting exercise in power, revealing more than the Court probably intended. As already mentioned, the Court did not posit a constitutional right so much as a natural right.

According to the Court, the Kansas Constitution merely recognized the natural right to abortion already held by the people who drafted and ratified the document. The Court's approach therefore grounded abortion in human nature, which the Court assumed does not change, rather than in constitutional law, which of course changes all the time!

The Court's strategy accomplished two things, rhetorically speaking. First, it allowed the Court to scorn any rejection of abortion as impossibly regressive. The only justice to dissent, the Hon. Caleb Stegall, properly noted that in the Court's "imagined world, the Liberty Bell rings every time a baby in utero loses her arm."

Second, it allowed the Court to play passive-aggressive. No, the Court claimed, its exercise of jurisdiction over innocent human life was not an aggressive use of government power. No, the Court claimed, its rejection of the "majoritarian" opinion in Kansas favoring restrictions on abortion was not aggressive in the least. The Court instead posed as a passive barrier to unreasonable actors who would otherwise attack the natural right to abortion.

Justice Stegall devoted most of his dissent to this pose. He argued the case was not "not only about abortion policy," but was "more elementally about the structure of our republican form of government." According to him, "[t]he structural idea that gave birth to Kansas as a political community, which has achieved consensus support across most of our history, is that the proper conditions for just rule are met via participatory consent to secure and promote the common welfare." (Emphasis in original.) The justice concluded his dissent as follows:

At the outset, I noted that this case isn't just about the policy of abortion, it is more basically about the structure of our government. While true, this description fails to account for a strange but persistent symbiosis between the two. Abortion has become the judicially preferred policy tail wagging the structure of government dog. For the majority, the settled and carefully calibrated republican structure of our government must give way, at every turn, to the favored policy. But in my considered judgment, constitutional structure is the very thing securing and guaranteeing the full range of human liberty. History and reason suggest that those who, in the name of liberty, tear down that edifice will wind up out in the political elements, unsheltered and exposed to the cold wind of every arbitrary power. (Emphasis in original.)

Justice Stegall's argument for limited government is noble, but it feels passed-by. The Roman gods which gave life to the ancient Republic (or so the Romans believed) could not be bothered to save the Republic once it passed to Empire. Such Romans as mourned the loss of the Republic were not heard. The Roman gods first created the Republic, and they then created the Empire—the gods moved on.

Here as well, the American gods have moved on. It turns out that government power based on social contract, one American god Justice Stegall invokes, is actually at the core of the Court's opinion. Justice Stegall is of course correct that the people of Kansas have not given the Court power to establish abortion as a natural right. But the Court is correct that the people of Kansas cannot give any branch of government a power they themselves lack, specifically (in the Court's view) a power to restrict abortion. What else could a natural right to abortion mean, but that the people cannot give government power to restrict that right? The Court is further correct that the people established it to decide disputed cases.

So, despite the truth found in the dissent, the overwhelming power of the Court remains unchanged. The Court's power can be exercised with restraint by virtuous people, as Justice Stegall asks, but power is available to the vicious as well. The Court has spoken on abortion in Kansas, and under the current system of government, the rest will listen.

Praying to the American gods therefore will not bring limited government back to Kansas. Just as the Roman government was ultimately restrained not by increased devotion to the pagan gods, but by increased devotion to the True God, the governments of Kansas and the rest of the country will be restrained only when they acknowledge the true source of their power.

Government power cannot come from the people, contrary to the common piety. Individuals lack the most basic power over others, such as taxing and incarcerating. Since individuals lack such power, a multitude are in the same boat. The interesting thing about the Court's opinion is that it tends toward agreement. If the people cannot give what they by nature lack, in this instance the power to restrict abortion, the same is true for all government functions.

In contrast, a Power which creates the common order may logically grant government subsidiary power over that order. Most governments throughout history have seen it that way. Revelation further teaches that the True God gives power to government under certain terms. See Mt. 28: 18-20; Rom. 13:1-7. Those terms do not include jurisdiction over innocent human life, a power God retains to Himself. See Ex. 20:13. Therefore no government may claim jurisdiction over innocent human life, even when purporting to hand that life to another.

Taking God's offer of power without God's intended limits is characteristic of sin. Sin began with Lucifer, whose intellect exceeded the combined intellects of all justices who have ever lived. Yet Lucifer's great intellect did not stop him from falling. Anyone who similarly grasps at God's power risks following Lucifer into damnation. The Kansas Supreme Court cannot stop it.

Even the law of murder can be changed:
Say "therapeutic", and the thing's arranged:
Pattern of heroic sacrifice,
Star of devotion in her children's eyes,
The pregnant mother summons good advice
It is not murder if the child's not seen;
This is what sentimental ethics mean.

—James McAuley, "A Letter to John Dryden"

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Last modified on Saturday, May 4, 2019