Sunday, August 7, 2022

In Kansas, Voters Reject SCOTUS on Abortion

    In his opinion for the Court overruling the Roe v. Wade abortion rights precedent, Justice Samuel Alito may have expected a rush of public approval for reducing the courts’ role on the issue and turning it over instead to state legislatures. But the evidence six weeks later suggests that the public rejects rather than welcoming the Court’s decision.

            In fact, legislatures in several states responded quickly to the Court’s June 24 decision in Dobbs v. Jackson Women’s Health Organization to overrule Roe v. Wade and nullify any nationwide constitutional right to abortion. Legislatures in some states voted to completely ban abortions and in other states enacted laws that sharply limit the discretion for women and their doctors to consider terminating an unwanted pregnancy.

            On the other hand, however, the people of Kansas voted last week [Aug. 5] by an overwhelming margin to reaffirm the judicially recognized right to abortion under the state’s constitution and to reject the accompanying provision to authorize the state’s legislature to ban or otherwise restrict abortion rights. With more than 922,000 Kansans going to the polls to vote on the referendum, 543,855 (or 59%) voted against a proposal that the Kansas constitution be amended to remove protections for abortion rights, while only 378,466 (or 41 percent) voted in favor.

            The vote in Kansas corresponds with public opinion polls following the Supreme Court’s decision that indicated 60 percent of Americans opposed the decision to overrule Roe v. Wade. Alito seemed to appeal to public sentiment with the final paragraph in his massive, 35,000-word opinion.

“The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion,” Alito wrote, on behalf of five justices. “Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”

            Alito opened by declaring Roe v. Wade “egregiously wrong” and went through a check list of factors to consider in overruling a prior decision. It must be noted that among twenty-one justices to have served on the Court since 1973, only eight – a small minority – have ever voted to overrule Roe v. Wade, which itself was a 7-2 decision with five Republican-appointed justices in the majority.

            Never before in U.S. history has the Supreme Court withdrawn a legally protected right important to wide segments of the American populace. Nor has the Court ever before overruled a precedent after a president based his campaign and his presidency on a promise to appoint justices who would vote to overrule the prior decision. It must be stressed that this is not law, this is nothing more than politics.

            Some have interpreted the Kansas referendum as a triumph for democracy, but it is a perversion of constitutional democracy to force the people to vote to preserve a right legally protected for nearly a half-century. Imagine a hypothetical analogy in which the Court overrules Brown v. Board of Education after fifty years and gives southern school boards the right to reinstitute racially separate school systems for white and black students.

            The hypothetical post-Brown Court might explain that the Brown Court erred in finding any legally protected right to public education in a Constitution that makes no reference to education, just as Alito and the other justices declared that the Constitution makes no mention of abortion either.

            Indeed, in a concurring opinion, Justice Clarence Thomas called for overruling several other precedents, important to wide segments of the American populace: Supreme Court decisions that guarantee the right to contraception, that protect the right for private, consensual gay sex, and that guarantee marriage equality for same-sex couples.

            In his opinion for the Court, however, Alito answered Thomas by stating that the decision does not implicate any of the other substantive due process precedents that Thomas wants to scrap.  The vote in Kansas suggests that Americans are in no rush to curb the power of courts to recognize constitutional rights to privacy on such intimate subjects as contraception and marriage.

            The eventual effects of the Court’s decision will turn on the actions of legislatures in the various states, but one result is certain: a patchwork of laws on reproductive rights that differ widely from blue states to red states.

            For now, however, this much can be stated with certainty. The Supreme Court has defied public opinion, rather than serving public opinion, by overruling a forty-nine-year-old precedent that three generations of American women have counted on in planning their personal and professional lives.

            Indeed, three of the justices who joined Alito’s opinion – Gorsuch, Kavanaugh, and Barrett – all circumspectly described Roe v. Wade as settled precedent in their Senate confirmation hearings. None of them then described Roe v. Wade as “egregiously wrong,” Alito’s characterization to which they now have concurred.

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