Kansas Attorney General and gubernatorial candidate Derek Schmidt speaks at the Kansas Supreme Court redistricting hearing in May 2022. (Thad Allton for Kansas Reflector)
Derek Schmidt’s gubernatorial campaign wants you to take the U.S. Supreme Court at its word. Despite last week’s bombshell ruling overturning Roe v. Wade, the attorney general’s campaign manager wrote to say we shouldn’t worry about other fundamental rights — birth control or gay marriage, say — being stripped by the activist court.
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Pardon me for not feeling reassured. And I couldn’t help but notice the candidate didn’t directly answer my questions about the long-term implications of Dobbs v. Jackson Women’s Health.
I wrote Schmidt’s campaign with a simple goal. I wanted to know if he believed the U.S. Constitution protected the right to birth control access (Griswold v. Connecticut), same-sex intimacy (Lawrence v. Texas) and gay marriage (Obergefell v. Hodges). The Supreme Court’s affirmative decisions in those cases have become part of the fabric of Kansans’ lives. Families across our state depend on them.
That’s why I asked the candidate a second question. If he didn’t believe the Constitution protected these rights, would he support and sign state legislation that did so?
Here’s the response I received from Schmidt campaign manager CJ Grover: “The critics of the ruling advancing those concerns are simply not correct. Nothing in Dobbs implicates any of those other precedents that have recognized different constitutionally protected rights. The Court was very clear on this point.”
He then pointed to a couple of passages from Justice Samuel Alito’s majority opinion that attempt to distinguish the right to an abortion from other rights the court recognized in recent decades. Alito says that because these cases don’t involve destruction of “potential life” they’re fundamentally different than Roe.
The justice perhaps states his case most forcefully here: “And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”
This is all well and good. But if you pause to think more than a moment or two, questions arise.
First off, why would anyone trust the court’s assurances after justice after justice misled the Senate on their intent? Sens. Susan Collins and Joe Manchin have both said they received assurances from nominees to the court — assurances that were steamrolled by the Dobbs decision.
Secondly, Alito’s majority opinion turns on the belief that abortion rights aren’t deeply rooted in our nation’s history. Let’s set aside the accuracy of that statement for a moment and reflect on the meaning. If that’s the standard used by the court, why wouldn’t the rights to birth control or same-sex marriage be at issue? The justices can claim they aren’t, but that appears to fly in the face of their own reasoning.
Finally, let’s turn to the concurrence from Justice Clarence Thomas.
He takes Alito’s reasoning seriously and states outright that: “In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”
In other words, those who feel alarmed about the prospect of the Supreme Court stripping other rights from Americans have abundant reason to do so. Ending a half-century of precedent has a way of focusing the mind on what outrages might come next. Schmidt’s campaign, however, would rather you not worry about it.
I followed up with Grover, pointing out that his response didn’t directly answer my questions, each of which could have been answered by a simple “yes” or “no.” I didn’t hear back.
I also sent the same two questions to Gov. Laura Kelly’s campaign. The response from spokeswoman Madison Andrus was simple.
“The answer to both of these questions is Yes,” she wrote. “Governor Kelly believes in and supports Americans’ fundamental rights under the Constitution and will always defend these rights to ensure that Kansas remains a safe place to live freely and do business.”
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What’s at stake in Kansas
I understand that, depending on your priorities, this might sound like so much background noise. The end of Roe on its own, without any other precedents falling, poses an urgent threat to the health of women, girls and anyone else who can become pregnant.
Yet pre-existing laws in Kansas make these concerns more pressing than you might think.
For instance, consider the right of gay people to have sex at all. That right to intimacy was finally established in 2004’s Lawrence v. Texas decision. Kansas retains a law on the books making sodomy illegal. A bill last session would have repealed that blemish on the Free State, as I wrote back in February, but legislators didn’t act.
If the Supreme Court were to overrule the finding in Lawrence, it would essentially become illegal to be LGBTQ in the state of Kansas. And if you tell me, “Oh, no one was prosecuted under that law anyway,” you would be wrong.
Likewise, Kansas passed an amendment to the state constitution banning same-sex marriage back in 2005. If the Supreme Court were to reverse Obergefell, the controlling law in Kansas would state that marriage is between one man and one woman and that “any other marriage is contrary to public policy and void.” The state is also prohibited from recognizing marriages or similar unions from other states.
How would our state deal with marriages – unions between loving couples with children and pets and property – dissolving into thin air?
Don’t worry about it, Schmidt’s campaign tells us.
For that matter, don’t count on birth control being available in the future. Current law is far from supportive of even the most basic reproductive health care, according to a fact sheet from NARAL Pro-Choice America.
The state doesn’t guarantee that prescriptions for birth control will be filled. It also doesn’t guarantee expanded coverage for contraceptives under private insurance or provide that expanded coverage for those with Medicaid. These are the laws today, and who can feel secure that the Kansas Legislature wouldn’t go further if it could?
Few of us, except the most craven ideologues, enjoy imagining such scenarios. But few of us imagined that Roe v. Wade would be swept aside in such breathtaking fashion.
Now is the time to worry, and to work. Regardless of assurances from a certain gubernatorial candidate.
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