Published On: Mon, May 23rd, 2016

Thomas More Society challenges Kansas Constitution, there is no ‘Right’ to an abortion

The Thomas More Society filed a friend-of-the-court (amicus curiae) brief in the Kansas Supreme Court in a case challenging the constitutionality of a Kansas law barring physicians from performing dismemberment abortions on live, unborn children.  The lawsuit was brought by a father-daughter team of physicians who perform dismemberment abortions in their clinic.  The physicians principal claim is that the abortion procedure ban violates Section 1 of the Kansas Bill of Rights, which provides that “all men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”  A lower court entered an injunction against enforcement of the law and a divided appellate court affirmed the lower court decision.

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photo Kauhajoki.vaakuna.svg

The Thomas More Society brief was filed in defense of the law on behalf of the Family Research Council, a national organization dedicated to the promotion of marriage, family and the sanctity of human life. Special Counsel Paul Linton argues that Section 1 of the state Bill of Rights does not create any judicially enforceable rights, much less a right to perform abortions.  A review of the proceedings of the 1859 Constitutional Convention reveals that in adopting Section 1 of the Bill of Rights, the framers did not intend to create enforceable rights.  Instead, they were simply including language from the Declaration of Independence in Section 1 as an expression of political principles.

The brief also reviews similar constitutional provisions from 28 other states, the overwhelming majority of which have not been interpreted to create judicially enforceable rights.  The phrasing of Section 1 and similar provisions from other state constitutions is simply too vague and general to allow for judicial enforcement.

Moreover, even if Section 1 were the source of judicially enforceable rights, a right to abortion would not qualify as such a right, given the history of abortion regulation in Kansas.  Only rights that were well established at the time of the constitutional convention could be considered “fundamental rights” under the Kansas Constitution, but abortion, except to save the life of the mother, was a crime in Kansas from territorial days until shortly before Roe v. Wade was decided.  He concludes that the barbaric practice of dismembering live unborn children is not protected by the Kansas Constitution.

The state’s Supreme Court decision is expected later this year or early next year.

Read the Brief Amicus Curiae of the Family Research Council filed by the Thomas More Society today in the case of Hodes v. Schmidt in the Supreme Court of Kansas here[https://www.thomasmoresociety.org/wp-content/uploads/2016/05/BRIEF-AMICUS-CURIAE-OF-THE-FAMILY-RESEARCH-COUNCIL-IN-SUPPORT-OF-DEFENDANTS-PETITIONERS-DOCKT-NO.-15-114153-AS.pdf]


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