A pro-choice activist holds up a sign during a May 3, 2022, rally in front of the U.S. Supreme Court in response to the leaked draft decision to overturn Roe v. Wade. (Alex Wong/Getty Images)
The Kansas Reflector welcomes opinion pieces from writers who share our goal of widening the conversation about how public policies affect the day-to-day lives of people throughout our state. Russell Arben Fox teaches history and politics in Wichita, where he has lived since 2006.
Historically, one of the many frustrations of the abortion debate in America is that it has rarely been solely about abortions.
Rather, because it has been carried forward through decisions like Roe v. Wade, Casey v. Planned Parenthood, and now Dobbs v. Jackson Women’s Health, it has always also been about judicial power and the meaning of democracy: who gets to decide about abortion, and how, and why. The controversy over Hodes & Nauser v. Schmidt, and the “Value Them Both” amendment vote to overturn it, mostly fits in with this tradition, for better and for worse.
Personally, I have serious theoretical problems with a system where unelected judges have the power to essentially make policy, even if it’s inevitable that some court has to be invested with final decision-making authority. In my ideal world, judicial review — the power to overturn laws and established rulings simply on the basis of elite constitutional judgment — would be greatly limited (perhaps by a requirement of unanimity, as Abraham Lincoln suggested). But does that mean I agree with those who present — as much of the promotional “Value Them Both” literature does — overturning the Hodes decision as necessary for the sake of respecting Kansas democratic decision-making?
Not really. It’s fair to say — as Justice Dan Biles did when he wrote his concurrence supporting the majority in Hodes — that the Kansas Supreme Court claimed, in the name of “bodily integrity,” more political ground than perhaps it ought to have. (I wonder if the court’s majority ever wondered about that when they saw Republican politicians misusing their language to justify opposition to vaccination policies during the pandemic.) But it’s difficult to view the issue of abortion through the lens of democratic theory when the Supreme Court itself shows no acknowledgment of that principle.
If Dobbs really does turn out, in the years to come, to have been just the first step in the expression of the Supreme Court’s determination to no longer involve itself in not just abortion legislation, but voter rights legislation, health care legislation, gun control legislation, etc., the time may come when I'll eat crow and call it a good decision, at least constitutionally speaking.
– Russell Arben Fox
If Dobbs really does turn out, in the years to come, to have been just the first step in the expression of the U.S. Supreme Court’s determination to no longer involve itself in not just abortion legislation but voter rights legislation, health care legislation, gun control legislation, etc., the time may come when I’ll eat crow and call it a good decision, at least constitutionally speaking.
However, since the U.S. Supreme Court handed down New York State Rifle v. Bruen, which overturned century-old and widely popular New York state gun laws literally just the day before Dobbs was handed down, I see no reason to believe the court is suddenly turning away from dismissing democratically determined legislation. Rather, I think the Republican majority on the court has, with Dobbs, finally achieved a long-pursued partisan aim. That aim is one that will hurt women whose choices I want to make easier, and preserving Hodes will save at least some women from some of that hurt.
But even just constitutionally, I disagree that Hodes, as some have claimed, undemocratically “changed … the landscape of abortion in Kansas.”
That only makes sense if you define “landscape” in terms of the ability to the state to ban one specific second-trimester abortion procedure, or impose burdensome abortion clinic requirements, because those are the only laws Hodes has affected so far. Kansas’ other abortion regulations — parental notification, waiting periods, etc. — all remain intact. Because Hodes itself also wasn’t actually about abortion; rather, it was about the level of justification that the state needs to show in order to pass abortion legislation without challenge. Hodes did not upset the abortion apple cart in Kansas; it simply guaranteed that Kansas won’t get pushed by extremists into following the costly path that Oklahoma, Missouri, and Texas have, allowing room in the Sunflower State for debate and compromise to continue.
Whether or not you believe abortion is an evil, it is also a fact in Kansas life, as it is and has been in the lives of every state and country and civilization throughout all recorded history. As such, it is something that deserves to be debated, and regulated, or not, as the people democratically decide.
That hardly settles the issue, of course, especially with democracy itself — the right to vote, the gerrymandering of election districts, the trustworthiness of election procedures, etc. — so often under attack. And the role of the courts to establish at least certain rules when it comes to the rights that ought to be outside of democratic negotiation is yet another, often controversial, variable in all this.
One thing, however, ought to be clear: Hodes did not end the fight over abortion in Kansas. It set down parameters to prevent Kansas women from suffering a complete loss of some of their basic rights, whatever the post-Roe wrangling over the who, the how, and the why of abortions in the state.
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