Thursday, August 4, 2022

Part I

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Kansas Votes Down Constitutional Amendment to Defend Unborn Life — Is This a Foreshadowing of Things to Come? How did this happen?

I’m Albert Mohler, and this is The Briefing, a daily analysis of news and events from a Christian worldview.

Well, the biggest news coming out of the state primary elections on Tuesday was what took place in Kansas. Kansas voters turned down a proposed amendment to the Kansas constitution that would’ve made very clear that that state’s constitution includes no right to abortion nor a requirement that the state fund, in any way, abortion. And it wasn’t close. Even though it was expected to go down to the wire, the vote was eventually 59-41 against the proposed constitutional amendment. Now, this is ricocheting all across the country and indeed, even beyond, because just weeks after the Supreme Court’s reversal of the Roe v. Wade decision, this is being championed as an example of a state fighting back and voter’s basically saying they will not stand for that decision to be the law of the land in their state.

Now, remember, and this is extremely important, the Dobbs decision handed down by the Supreme Court in June did not state that abortion would be illegal in all 50 states. It simply returned the question to the states. The net effect of the infamous 1973 Roe v. Wade decision by the Supreme Court was to take the question away from the states and to establish by way of imagining a constitutional right to amendment, taking away the right of the states to limit abortion and most particularly to criminalize abortion or to outlaw abortion. Now, there had been twist and turns in the last half century in terms of states attempting, sometimes successfully, to limit abortions. But Roe v. Wade was the insurmountable obstacle to states simply preventing abortion, outlawing all abortions, or even most abortions. All that did change just this year when just a few weeks ago, the Supreme Court reversed Roe v. Wade. The question was returned to the states.

So did pro-life forces in Kansas after the Dobbs decision decide that they were going to try to bring this amendment to the Kansas constitution in that light? No, the effort was already underway. Known as the Value Them Both Amendment, pro-life forces in Kansas were not so much responding to the abortion issue at the federal level as at the state level, because they were responding to a 2019 decision by the Kansas Supreme Court that found, according to a majority on that court, a woman’s right to abortion in the Kansas constitution. And so the scheduled vote that took place this past Tuesday was not put in place after the Dobbs decision, but before the decision. And that certainly complicated things in the sense of the kind of voter momentum that the left has been pushing in response to the Dobbs decision. And so the left and pro-abortion forces, and in particular the leadership of the Democratic Party, sees the vote in Kansas on Tuesday as a vindication of the approach they want to take.

For pro-lifers, it was an extreme disappointment. That was clear among pro-life forces in Kansas on Tuesday night. Again, it had been expected to be close. But 59-41 is not close. Indeed, it’s a landslide, the landslide in this case against a very important amendment that would have underlined the value of human life there in Kansas.

Part II

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The Strange and Unpredictable Political Behavior of Kansas: It Has a Long History

But it’s also true that every state, all 50 of them, have individual histories. The history of abortion in Kansas is a very, very interesting story. For one thing, Kansas became one of the states that it outlawed abortion during the time that many states were doing so in the course of the development of modern American medicine and modern American jurisprudence and legislation. The idea was that women should be prevented from victimization by abortion. That legislation is exactly what Roe v. Wade nullified in 1973, affecting a majority of the states at the time, and thus Kansas and the other states had to acknowledge the Supreme Court’s decision. And thus, even as some of the states retained anti-abortion laws on the books, they had to put them on hold.

As we will see in the course of today’s consideration, Kansas has a very interesting history. It’s important to this point to say that it was heavily influenced by the populist movement in the late 19th and early 20th centuries. In one sense, Kansas would’ve been rather liberal in a political sense during that time, but not so much so, because as a matter of fact, when you look at the history of Kansas, you’ll see that it has often gone back and forth. It’s an unpredictable state. Many people call it deep red right now, but most analysts understand that there is a huge middle in terms of Kansas’ politics that does affect the eventual outcome. Not only in terms of statewide elections, but in particular, as we’re looking at this proposed amendment in Kansas.

But let’s go back to history for a moment. After the Roe v. Wade decision, Kansas increasingly, under pro-life influence, began to pass statewide legislation testing the constitutionality of restrictions on abortion. In 1997, Kansas passed what was known as the Woman’s Right to Know Act. This was one of the informed consent acts that put a time period between when a woman was given notification about the realities of abortion and when she could actually undertake the abortion. By the time you reached the 21st century, in the early years of this century, Kansas adopted law that banned abortions at 22 weeks of gestation. That was one of the fetal pain bills passed by numerous states at the time.

In 2013, the state adopted a targeted regulation of abortion providers law, and that would apply to so-called medical abortions, that is abortion pills as well as surgical abortions. But the big news came just a few years ago. In 2013 and 2014, pro-life forces were frustrated by a lack of legislative process. Some very important proposals had died. But in 2015, pro-life forces were successful in the Kansas legislature in outlawing so-called D&E or dilation and evacuation abortions, the primary surgical means by which a baby is basically dismembered in the womb. That legislation turned out to be absolutely pivotal, not because it is in effect, but because it isn’t. And the reason it isn’t is that in 2019, the Supreme Court in Kansas struck down the law stating that a woman had a right to an abortion under the Kansas state constitution.

That is absolutely crucial. That’s the hinge upon which all the recent headlines have turned. That was the 2019 decision by the Kansas Supreme Court following basically the lead of the Supreme Court in Roe v. Wade, that the Kansas state constitution included a right to privacy, which included a right to abortion. Of course, abortion not mentioned in the constitution. Didn’t matter. Just like the Supreme Court in 1973, the Supreme Court in Kansas simply declared that there was a woman’s right to an abortion in the Kansas constitution. No one could see it, but the court nonetheless found it.

Now, that set the stage for the vote that took place on Tuesday. That’s why what was needed in Kansas wasn’t just legislation. The legislation passed as far back as 2015. It was instead a constitutional amendment that was necessary that would bind the state’s courts, and most importantly, the Supreme Court. That’s why the Value Them Both Amendment had been put forth and went through the entire process so that it could arrive for a vote by Kansans on Tuesday of this week. And at least early in that process, it appeared that the amendment would likely pass.

Now, everyone is going to be doing a political autopsy on this issue in Kansas. Does this mean that Americans really don’t want abortion banned? Does this mean that voters in Kansas don’t want abortion banned? Well, in some sense, that second message is almost an escapable here. Just pointing out how much work remains before us in the pro-life movement. A closer look of the text to the amendment points to the big issue here. The amendment that was turned down by voters in Kansas stated this, “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, in circumstances of pregnancy resulting from rape or incest, or when necessary to save the life of the mother.”

Now, the proponents went on to make very clear that the issue here was to underline the fact that the Kansas state constitution included no constitutional right to abortion. That’s what went down to defeat, 59-41. How can you explain this? Well, some observers have pointed to the fact that the left mounted a massive political and disinformation campaign. Some of that disinformation was blatant such as suggesting that the constitutional amendment would do what no informed legal scholar or proponent of the amendment would believe it would do. Others just sought to confuse voters. And when you’re looking at something like this, you understand that an amendment that is going to say no to abortion that requires yes on the ballot can actually be confusing to voters. But there’s no confusing of 59-41 vote. If it had been close, perhaps the confusion could have explained it or explained it in large part. But confusion can’t explain what happened in Kansas on Tuesday, and the pro-life movement’s going to have to come to terms with that.

Those who have been involved in the pro-life movement for a long time will understand that Kansas has always been a rather strange and unpredictable place on the issue of abortion. Its political history is very complicated as well as very interesting. But I will remember that at one point, the city of Wichita, Kansas was considered ground zero in the United States for late term abortion by the infamous abortionist Dr. George Tiller at a clinic that he operated there in Wichita, Kansas. I visited Wichita during the time that the Tiller clinic was in operation. It was very clear that there was a certain kind of late abortion tourism that was taking place with flights landing in Wichita with women who were seeking abortions that would not be legal anywhere else in the United States. Or perhaps even if legal, not really obtainable.

Late term abortion, even back then, say in the 1990s, was increasingly difficult to obtain for a number of reasons. Number one, the political support for late term abortion begins to fall off considerably. Secondly, the Roe v. Wade decision with its division into trimesters acknowledged that in the third trimester, even the state, that is the government, had the right to come in on behalf of the unborn. But there’s also just something else in terms of moral sense that plays into the revulsion against late term abortion, which is the fact that at that point in a pregnancy, it’s very, very difficult to speak of a fetus.

Even if you are trying to avoid using the word baby by the third trimester, it is virtually impossible. Pro-lifers understand that it’s a baby from the start. But even those who try to avoid using the phrase baby, by the time you get to the third trimester, even in just the appearance of the unborn baby at that point, it’s extremely difficult to make that case. And a certain kind of moral instinct kicks in, a certain revulsion factor, which meant that very, very few doctors, then and now, have any real interest in performing late-term abortions.

As I said, there was a clinic in Wichita, Kansas that was well known, indeed infamous for late term abortions. The clinic and its doctor would become well known to Americans when in 2009, the abortion doctor was murdered by a radical anti-abortion activist. All of this is in the background in the abortion issue in Kansas and it’s going to be a part of having to do any analysis of what message, what precise message the voters in Kansas were sending on Tuesday.

Writing for World Opinion, Eric Teetsel who had been president of the Family Policy Alliance of Kansas, points out that there are really three voting constituencies in Kansas. And this has been true for some time. He pointed out that even as Republicans have a very clear advantage in voter registration, many moderates are simply identified as Republicans because they want to have a say in the Republican primaries and inside the dominant affairs within the state. Now he points out that there are really three different political constituencies. He says they are conservatives, progressives, and in the middle, moderates.

Now, that’s very important because Christians need to understand that is often the setup for a political or moral or cultural question. It’s not so much that it’s just a vote that would divide conservatives and liberals, or in this case, conservatives and progressives. It is how those in the middle will vote. Now, sometimes in political terms these are referred to as swing voters. In political terms, this is the setup in most situations. Kansas just turns out to be a bit more so in this case. But as you’re looking at the left and the right and the middle, in political terms, both the left and the right face the electoral challenge of calling out their own base insufficient numbers, liberals calling out to liberals, conservatives calling out to conservatives, but both of them also have to worry about getting over 50%, or whatever is the requisite number to win an election, by winning a sufficient number of votes from the middle.

Now, what took place in Kansas is that an awful lot of people characterize as somewhere in the moderate category, they shifted to vote against this amendment, and to do so rather overwhelmingly. Just one number tells the story here and this is an ominous number for the pro-life movement. 89,000 republican voters voted against the amendment who had voted in the Senate republican primary there in Kansas. This is the most troubling number I have seen from the entire situation in the Kansas vote on Tuesday. I think Eric Teetsel is exactly right when he says that what took place in Kansas was a perfect storm against the pro-life movement.

But as one, we are all going to have to try to observe in order to learn the lessons from it in order to make more progress as this question is going to be returned to the people’s elected representatives in the states, and as in Kansas, in some cases, to the voters of the states themselves.

Part III

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“Assisted Appointment” as an Insider’s Game — Tracing How the Kansas State Bar Dominates Supreme Court Appointments

But there are two additional dimensions of the story that should have the attention of intelligent and thinking Christians trying to understand these issues through a Christian worldview. One is the nature of the culture of an individual state, in the history of the state such as Kansas. The other has to do with how judges get into the role of eventually deciding so many of these questions. But first let’s look at Kansas. As far back as 1896, a newspaper editorial authored by William Allen White asked the question, “What’s the matter with Kansas?” Now, what was he asking in 1896? He was asking why Kansas did not give greater support to the political populism that was beginning to gain power, especially in the Midwest, in the upper Midwest, during the 1890s in the early 20th century. William Allen white was expressing his frustration. He would later create some distance between himself and his most famous editorial, but there’s no doubt that editorial and its question, “What’s the matter with Kansas?”, well, it has entered the American political lexicon.

More recently, it came to fame in 2004 in a New York Times bestselling book entitled What’s The Matter With Kansas? Again, the very same question being asked. And this time not in a newspaper editorial, but in a book. This book was by democratic strategist Thomas Frank. His point came down to this. He was arguing from the left that something weird is going on in Kansas. The increasingly red or republican character of the state, he said, demonstrated that voters were voting against their own economic interest.

Now, this is something that has perplexed many on the left, and in particular, many who are strategists and leaders within the Democratic Party. They look at the economic issues and then they look at the voting patterns and they simply don’t understand why so many blue collar voters have moved away over the course of the last several decades from solid support for the Democratic Party to solid support for the Republican party.

Thomas Frank’s approach was actually pretty condescending toward those voters, suggesting that, “Duped by somebody,” and he meant the Republicans and conservatives, “Those largely blue collar workers and people in the agricultural industry in a state like Kansas were simply voting against their own interest.” Now, what Thomas Frank simply could not understand is that those voters were actually voting in their interest when it came to issues even more fundamental than economics. Now, they may also have agreed with republicans on economics and on the future of their own jobs and industries and farms. But what was even more important was that the leftist positions undertaken by the Democratic Party on a host of moral issues including abortion, eventually same-sex marriage and others, had alienated blue collar workers. And those workers, if the democratic strategist could ever understand it, we’re sending the signal, “We’re not going along with your cultural revolution.”

Now, Thomas Franks came back, and again this is very condescending, and said that, “What conservatives had done was simply to sow seeds of distrust against cultural elites.” What those on the left just wouldn’t recognize is that the people weren’t buying the moral messaging and the moral revolution being pushed by those cultural elites.

But as I said, there is a third dimension to this story that is of vital importance and it has to do with the judiciary there in Kansas. And as I said, the proposed amendment that went before voters on Tuesday was made necessary by a state Supreme Court decision there in Kansas in 2019, by which the justices of the Kansas Supreme Court themselves, just like Roe v. Wade in 1973, created out of whole cloth and their constitutional imagination a woman’s right to abortion.

Now, the state Supreme Court did that and yet the majority of the voters have been very supportive of restrictions on abortion, at least to that point. So how do you explain it? Well, this is laden with worldview importance. It’s because those Supreme Court justices in Kansas are not elected. They are appointed. And they’re appointed through something that is known as assisted appointment. And that’s a huge problem. Supreme Court justices in Kansas are appointed to the role by the governor. Now, of course, the governor has a D or an R after the incumbent governor’s name. But in this case, the governor’s not just choosing from those who might be qualified. Instead, the assisted appointment process indicates that there’s a commission at work. And that commission forwards to the incumbent governor, at any given time, three different names from which the governor may choose one. The governor may only choose a nomination from that list. If the governor does not move to make such a selection, the chief justice of the Supreme Court may make that selection.

Now, this is obviously an internal job. The situation is made far worse when you understand that the commission making the nominations is overwhelmingly dominated by the bar association there in Kansas, which means it turns out that the pattern when you come down to it is largely liberal lawyers choosing other liberal lawyers to be presented to a governor, whether a conservative or a liberal, who can only choose from the names forwarded by the commission.

Now, there may be some in Kansas who would say that’s not fair. It’s not fair to say that you’re talking about liberal members of the bar. But yet it is fair in the larger context, because what we see here is the fact that the very elites, remember that Thomas Frank and asking the question “What’s the matter with Kansas?” said that the voters of Kansas were overly concerned about elites? Well, I think they’re insufficiently concerned about elites when you look at the process by which they get their members of the Supreme Court. Because you’re looking at the fact that the professions guard their own interests. And that’s as true of medicine, as it is of law, other professions as well. The very idea of a profession in the United States is that it is self-regulating and self-defining, and in many cases, self credentializing.

And so it’s a very internal issue. And as the academy, the legal academy, the universities and the law schools have gone way left, and they overwhelmingly have. And even as the professional associations have also gone very liberal, indeed you could use the word woke when looking at many of these professional societies and associations, the fact is that they basically replicate their own worldview. And when you have a commission that has the sole authority to present three nominees from which the governor may choose only one, well, they basically have an inside track to putting their own people one way or another. At least people allied with their own worldview and their own political priorities and their own constitutional ideology on the state Supreme Court there in Kansas.

All of this is going to present an increasing avalanche of challenges to Christians as we think about our society and our culture, because the professions are overwhelmingly trending left. Some of them at almost lightning speed. It’s going to be far more difficult in a world in which these professional associations have become so committed to leftist ideologies. It’s going to be increasingly difficult for Christians to negotiate within those professions. It’s going to be increasingly difficult for Christians who are serious about Christianity even to gain access to those professions.

Indeed, we can look right now at the fact that being members of some conservative Christian churches, just church membership alone, could well be disqualifying for jobs in some professional circles. In some law partnerships, law firms and certain medical practices, you can see exactly how this would work. Right now, it is largely unspoken that all it takes is a realignment of the professional standards of these self-regulating professions, and that effective discrimination against biblically minded Christians will be a matter of policy and an undeniable matter of fact.

We’ll be tracking the development of these challenges with you.