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Bill carrier Rep. Todd

Bill carrier
Rep. Todd

Although this proposal already passed the Senate THREE YEARS AGO, the Kansas House today could not muster the 2/3 needed (84 votes) to put HCR 5005 on the November ballot. HCR 5005 would let the public vote to change the way state Supreme Court justices are selected.

The vote attained was 68 for, 54 against (with 3 reps absent). Those voting yes are the reps who treat the pro-life cause as a priority– not a preference, or an afterthought. Kansans for Life considered this the most important pro-life vote of this legislative session.

Here are the names of state reps who supported this measure to allow Kansans to vote for a change in judicial selection, with those in bold having spoken at the podium urging passage:

Anthimides, Barker, Barton, Billinger, Boldra, Bradford, Bruchman, Campbell, B. Carpenter, W. Carpenter, Claeys, Corbet, Davis, DeGraaf, Dove, Edmonds, Esau, Estes, Garber, Goico, Gonzalez, Grosserode, Hawkins, Hedke, Hemsley, Highland, Hildabrand, Hoffman, Houser, Huebert, Hutchins, Hutton, Johnson, D.Jones, K.Jones, Kahrs, Kelley, Kleeb, Lunn, Macheers, Mason, Mast, McPherson, Merrick, O’Brien, Osterman, Pauls, Peck, Powell, Rahjes, Read, Rhoades, Rubin, Ryckman,Jr., Ryckman,Sr., Scapa, Schwab, Schwartz, Smith, Suellentrop, Sutton, Thimesch, Todd (bill carrier), Vickrey, Waymaster, Weber, Whitmer, Williams.

Speaker Merrick

Speaker Merrick

State reps Henry, Kiegerl and Seiwert were absent. Contact information for all state reps is here. Read explanations of votes here (pgs. 1991-1994).

Please thank your state reps who voted yes. Special thanks to House Speaker, Ray Merrick (R-Stillwell), for allowing this vote and staging the informational caucuses this week.

The issue is not closed. Kansas has the least transparent and least democratic process used to arrive at nominees for the state Supreme Court (see chart). Behind closed doors a commission of nine –including five lawyers voted in by lawyers– puts forth three names and the governor must choose one or else the Supreme Court Chief Justice picks one.

Our State Supreme Court is more liberal than the U.S. Supreme Court, which — with an 8-1 vote– chastised our top Court two weeks ago for its handling of a death penalty sentencing issue.

Our second highest state tribunal, the Court of Appeals, recently allowed dismemberment abortions to continue by a split decision interpreting our 1859 state Constitution to embody a right to abortion stronger than that of Roe. That’s pathetic!

All our pro-life laws are in jeopardy when the courts continue to deliver rulings that substitute abortion advocacy for strict construction analysis. Stay tuned!

AG Derek Schmidt

AG Schmidt

On Monday, Kansas Attorney General Derek Schmidt filed an appeal with the Kansas Supreme Court, asking for an expedited ruling on the question of whether the Kansas Constitution embodies a right to abortion.

A  7-7 ruling from the Court of Appeals on Jan. 22  maintained a district court’s temporary injunction against the Kansas Unborn Child Protection from Dismemberment Act.

However, Schmidt  asserts that properly understood,  the 7-7 tie is really a 7-6-1 ruling,  thus denying any state constitutional right to abortion.

The appeal (ironically titled a “prayer” in legal jargon) argues that the heart of the Court of Appeals ruling is whether the state Bill of Rights mimics the due process protection of the federal Fourteenth Amendment that is the basis for Roe v Wade.

  • Seven appellate judges (in the dissent, penned by Chief Judge Thomas Malone) held that the state Bill of Rights does not provide “Roe” protection,
  • six judges (in the ruling written by Judge Steve Leben) said the state Bill of Rights does provide “Roe” protection by extension, and
  • one concurrence (by Judge G. Gordon Atcheson) conceded that the state Bill of Rights’ Article 1 really doesn’t match up with “Roe” but no matter because abortion is protected in a stronger way.

    Judge Atcheson

    Judge Atcheson

Judge Atcheson wrote, “Article 1 provides a constitutional protection [for abortion] that has no direct analog in the federal Constitution… [it] effectuates self-determination consistent with an evolving and ever more enlightened understanding of humanity across both race and gender.”

He also wrote, “a woman’s right of self-determination, as established in Article 1, takes precedence [over a fetus] incapable of free-will or self-determination,” and “I cannot infer a particular legislative purpose or governmental interest advanced in Senate Bill 95 [the dismemberment ban].”

Truly the abortion protection that Judge Atcheson wishes to be found in Kansas’ 1859 Bill of Rights is broader than Roe and –if agreed to by the Kansas Supreme Court—poses a threat to all existent pro-life laws in this state.

On the other hand, the six appellate judges who want a state right to be an extension of Roe implicitly would examine pro-life laws under the “undue burden” standard, which is more workable than if abortion is declared fundamentally protected and laws have to pass “strict scrutiny.”

Because the appellate court really left all Kansas courts adrift in confusion, Schmidt urges the Kansas Supreme Court to take up the issue. Until it is resolved, it will continue to be raised in existent and future lawsuits, he argued.

At issue is a compelling constitutional question of “first impression.” That is something that ultimately only the Kansas Supreme Court can resolve.

Hon. Thomas Malone

Appellate Chief Judge Malone

On the 43rd anniversary of Roe v. Wade, Kansas pro-lifers groaned when they heard that the state Court of Appeals had tied 7-7, meaning that a lower court’s ruling would stand and, with it, a temporary injunction on our historic ban on dismemberment abortions.” An appeal is being quickly drafted by the office of Attorney General Derek Schmidt to the state Supreme Court.

The “Unborn Child Protection from Dismemberment Abortion Act” became law in Kansas in April, just days before Oklahoma enacted the law. The Act prohibits one specific method of abortion—a torturous, piece by piece, dismemberment of a living unborn child.

Shawnee District Court Judge Larry Hendricks was the first judge in the nation to review the matter. Hendricks so much loved the abortion attorneys’ arguments (inventing a previously undiscovered fundamental right to abortion in the 1859 Kansas Constitution) that he had them pen his temporary order for injunction! (Didn’t know judges could do that, did you?)

After the state appealed Hendricks’ injunction, all 14 members of the Court of Appeals heard arguments from both sides on December 9.

Attorneys for the plaintiffs (a father and daughter team of abortionists) asserted that Article 1 and 2 of the Bill of Rights of the state Constitution expressly contained a liberty right to abortion which must be interpreted the way the due process section of the Fourteenth Amendment to the U.S. Constitution was interpreted in Roe v Wade.

Seven appellate judges, in the dissent authored by Chief Judge Thomas Malone, used careful reasoning and a strict constructionist approach to opine that there is no ‘independent state-law right to abortion” and “there is nothing in the text or history of Articles 1 and 2 …to lead this court to conclude that these provisions were intended to guarantee a right to abortion.”

Chief Malone’s dissent notes that the Kansas Bill of Right predates the Fourteenth Amendment and to accept “such a broad reading” of the Bill of Rights, which “does not contain the same language” as the Fourteenth Amendment and “was ratified under different historical circumstances, would go well beyond the apparent intent of its framers.”

As the Attorney General defense team has consistently argued, abortion in Kansas was outlawed– even before the state bill of rights was ratified— and broadly criminalized thereafter except to prevent the death of the mother in an emergency.

Malone’s dissent highlights the essential tension, “[A]bortion places the pregnant women’s liberty interest directly at odd with the unborn child’s right to life. The balancing of these interests is a matter of public policy” which is under “the charge of the state legislature, not the court.” Moreover,

“The proper question to ask and answer is what rights the makers and adopters of the instrument intended to protect…not what rights today’s judges would like to see in our state constitution.”

Appellate Judge Leben

Judge Leben

The other half of the Court of Appeals does not subscribe to judicial restraint and agrees with the Hendricks ruling. Six of them united behind an opinion written by Judge Steve Leben. They say that Articles 1 & 2 of the Bill of Rights are sufficiently equivalent to the Due Process Clause of the Fourteenth Amendment.

Atcheson

Judge Atcheson

JUDICIAL ACTIVISM
In a separate concurrence affirming the Hendricks ruling, Judge Gordon Atcheson distinguishes his support from the Leben opinion. He finds that Article 1 and 2 provide even greater protection for abortion than the Fourteenth Amendment. And this is a case study in rhetoric over legal analysis.

For example, Judge Atcheson refers to the dismemberment of an unborn child as if it is merely “unaesthetic,” while (incorrectly) asserting that the state cannot prohibit a barbaric abortion procedure. He wrote, “The government cannot impose upon an essential right because some exercise of the right may be unaesthetic or even repulsive to some people.

He ignores the example that horrific partial-birth abortions are illegal, as upheld in the 2007 Gonzales ruling of the U.S. Supreme Court, but that may be because he disdains it so much: “Women have a right protected in Article 1 to exercise reproductive freedom as an essential component of their self-determination. To suggest otherwise simply inflates that women are flighty creatures in constant need of guidance and protection to be supplied either by menfolk or, in this case, a meddlesome government … That sort of paternalistic claptrap animates the majority opinion in Gonzales v. Carhart.”

Another of the examples of Judge Atcheson’s pro-abortion feminism: “Although the general societal and legal acceptance of gender equality hasn’t yet reached every quarter, Article 1 doesn’t bend to the obdurate views of those who would cling to the days when white men were the acknowledged masters of the realm.”

The caliber of Judge Atcheson’s writing and the extreme reach taken in the Judge Leben group opinion are distressing. The state of Kansas defense team has consistently maintained that the notion that there exists a state constitutional right to abortion “is a fantasy.” Half of the appellate court had the wisdom to recognize it.

APpellate court

KS Court of Appeals

The Kansas Court of Appeals majority ruling Friday was a 7-7 tie which means the Unborn Child Protection from Dismemberment Abortion Act is not voided, but the lower court injunction remains in place and the ban is not in effect.

Seven judges support one appalling method of tearing apart LIVING well-formed unborn babies –due to the novel claim that abortion is included in our state constitutional bill of rights. This is an activist, offensive ruling not reflective of sound analysis.

Seven judges wrote in dissent, disagreeing that the dismemberment ban must stay blocked. Those seven judges included two appointed under pro-abortion Gov. Sebelius, showing that the recognition of the state’s right to prohibit an unbelievably heinous and barbaric abortion method –as the U.S. Supreme Court in the 2007 Gonzales ruling clearly did– is an issue beyond partisan labels.

The resulting split ruling affirms the recent improvement in the nomination of Appellate judges and underscores Kansans for Life’s promotion of reform of the nomination process for state Supreme Court. .

Of the 14 total appellate court members, the newest member was picked with the “federal model” protocol (Kathryn Gardner, part of the dissent) while 13 were picked under the “Missouri plan” method in which:

  • nominees are chosen secretly within a commission whose majority is chosen by a disproportionately tiny group of registered attorneys. The die is cast by the commission chief, chosen last time by 2,500 attorneys–not at all proportionally representative of the 1.7 million registered Kansas voters.
  • nominees forwarded to the governor are chosen with various motivations by the commission with a nod to the policy preferences of the sitting governor (and candidates with recorded donations to the governor), but the choice is forced on the governor, for if he/she rejects all three, the Chief Justice gets to pick one.

Kansans for Life appreciates any judge who respects the rule of law. Our support for judicial selection reform is not about suggesting that it is impossible for a “Missouri-plan” judge to arrive at a correct result– that would be absurd.

Rather, we support reform because increased democratic accountability on the front end of the process builds societal respect for the judiciary. On balance, that is likely to result, over the long term, in more judges who will exercise judicial restraint.

KFL has held this position in support of judicial selection reform since 2005, under Gov. Sebelius– and thus is independent of the existence of a Governor’s policy on abortion because the public accountability rests in the Senate confirmation process.

Gov. Brownback flanked by KFL's Mary Kay Culp and Archbishop Naumann

Gov. Sam Brownback, flanked by KFL’s Exec. Director, Mary Kay Culp, and KCK Archbishop Joseph Naumann

Neither the D.C. blizzard nor the legal disapproval of half of the Kansas state Court of Appeals stopped the Pro-life Religious Council from giving their award to Gov. Sam Brownback Friday for Kansas’ historic passage of The Unborn Child Protection from Dismemberment Abortion Act.

The result of a rare 7-7 tie decision Friday by the Kansas Court of Appeals is that the appalling opinion of Shawnee District Judge Larry Hendricks’ is upheld–for now. Judge Hendricks ruled that barbaric dismemberment abortions cannot be outlawed because the 1859 Kansas Constitution contains a right to abortion.

The dismemberment ban is not voided, but it remains enjoined from going into effect while litigation continues. The ban will be vigorously defended by the legal team of Attorney General Derek Schmidt.

"shower curtain"sign by Kansas pro-life activist, Vonda Wiedmeyer

“shower curtain” sign held up in the audience by Kansas pro-life activist, Vonda Wiedmer

In his acceptance remarks, Gov. Brownback urged that Kansas’ strong bipartisan passage of this dismemberment ban be repeated across the nation and at the nation’s Capitol.

Fr. Frank Pavone, who hosted the award ceremony, observed that the Appeals Court ruling shows that, “the battle for the unborn child’s civil rights will go back and forth for now. We know, however, that the truth of that child’s humanity will ultimately triumph over the lies of the abortion industry.”

Among attendees at the PRC presentation were Mary Kay Culp, Executive Director of Kansans for Life, and Archbishop Joseph Naumann, head of the Catholic Archdiocese of Kansas City in Kansas. The Kansas Catholic conference had testified in support of the ban:

“The fact that this legislation is even necessary is an indictment of our society and even the very notion of human progress…[when] we in the here and now allow our children to be torn apart, piece by piece, limb by limb.”

stop dismembering posterA temporary injunction will remain in place against SB 95,  the Unborn Child Protection from Dismemberment Abortion Act, after the Kansas state Court of Appeals ruled today in a  7-7 tie in the matter.

The Act bars a gruesome method of abortion in which a well-developed, living, unborn child is torn apart piece by piece with sharp metal tools.

Attorney General Derek Schmidt’s office will continue to rigorously defend this law.

This outrageous ruling needs to be heard by the state Supreme Court without delay.

The law was designed to pass muster with the U.S. Supreme Court; abortion attorneys apparently recognized that fact, thus choosing to file suit in state court, seeking the creation of a state right to abortion.

The dismemberment ban was blocked June 25 with a temporary injunction from Shawnee District Court Judge Larry Hendricks. The lawsuit was filed and argued by the New York-based Center for Reproductive Rights on behalf of the Overland Park Center for Women’s Health that had previously sued two other Kansas pro-life laws that have not proceeded to trial.

Judge Hendricks completely accepted the abortion industry claim that the basis for a federal “right” to an abortion also is found in the Kansas constitution. Hendricks misstated federal jurisprudence on abortion, and ignored the key 2007 U.S. Supreme Court Gonzales ruling, which said:

Casey [the 1992 Supreme Court decision] does not allow a doctor to choose the abortion method he or she might prefer …[and physicians] are not entitled to ignore regulations that direct them to use reasonable alternative procedures.”

Even pro-abortion justices of the U. S. Supreme Court have acknowledged that the dismemberment of a living unborn child is as brutal and inhumane a method of abortion as the partial-birth abortion procedure, which is now illegal throughout the country.

It was a valid act –both legally and morally–for the Kansas legislature to curb dismemberment abortions.Kansans were outraged to learn of this heinous method of shredding apart innocent unborn children,” said Kansans for Life executive director, Mary Kay Culp.

Kansans for Life submitted a friend of the court brief for the appeal.

SB 95 is supported by U.S. Supreme Court language that upholds the state’s right

  • to show respect for the developing unborn and
  • to insure the integrity of the medical profession which it regulates.

Kansans for Life is confident this law will eventually be upheld—mirroring the long, but successful partial-birth abortion battle in which the U.S. Supreme Court eventually acknowledged the validity of pro-life legislation.

Gov. Sebelius celebrated re-election with abortionist Tiller

Gov. Sebelius celebrated her 2006 re-election with abortionist Tiller

As Kansans prepare to attend events in Topeka  and Washington D.C. marking the 43rd anniversary of the tragic Roe v Wade ruling, it is instructive to look back over the past ten years to appreciate the progress we’ve made.

In 2005, Kansans were furious with the pro-abortion policies of Gov. Kathleen Sebelius –who had received abortion financial backing for many years:

  • her administration blocked late-term abortion investigations by pro-life Attorney General Phill Kline;
  • she helped the state medical board hush up the death of a mentally disabled teen at George Tiller’s Wichita abortion clinic;
  • she vetoed a desperately needed law to regulate and inspect abortion clinics;
  • she deleted grant money budgeted for non-profit organizations that provide care to pregnant women.

In 2006, the abortion industry money machine and Kansas newspapers revved up to help Gov. Sebelius win re-election during which time:

  • she publicly appeared with Planned Parenthood head, Cecile Richards, railing against AG Kline for trying to prosecute abortion lawbreakers;
  • social justice coalition meetings and phony online pro-life support groups were invented to downplay her abortion extremism;
  • she campaigned for AG Paul Morrison– who would win and protect abortionists from prosecution before resigning in a sex scandal;
  • she ignored her Archbishop’s challenge to “join the Culture of Life.”

From 2007-2009, Sebelius

  • tried to force legislation promoting unethical research that destroys humans at the embryonic stage;
  • vetoed, for the second time, the abortion clinic regulation law;
  • appointed a new AG who blocked prosecution of Planned Parenthood and Tiller;
  • was confirmed as HHS secretary (claiming “she had tried to reduce abortions”) and then vetoed a law to end Kansas late-term abortion corruption.

There was much more, but this should suffice to remind us how we have left what was a horribly demoralizing time for pro-lifers.

Kansas was known as the late-term abortion capitol under a protective Gov. Sebelius and corrupt key government bureaucrats. (read more here)

But pro-lifers are persistent… and Kansans for Life has partnered with them across the state to

  1. help found and support pregnancy help centers;
  2. advance excellent legislation that inspires other states; and
  3. help elect a pro-life Governor, Sam Brownback, and a pro-life legislative majority in both chambers.

As we mark the day of mourning tomorrow with prayer and exhortations to reform the judiciary and hold our lawmakers accountable, we can be grateful for the challenges that did not stop us in Kansas from fighting to protect the unborn.

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