TOPEKA — Barbara Saldivar and Brandi Fisher epitomize the uncompromising clash of opinion ruffling the Kansas political landscape in the wake of a state court decision declaring women possess a constitutional right to abortion.
These two help define the boundaries of argument as the 2020 Legislature prepares to consider whether to place on statewide ballots an amendment to the Kansas Constitution reversing a Kansas Supreme Court opinion declaring the inalienable right to life, liberty and pursuit of happiness applies to women deciding whether to continue or end a pregnancy.
Saldivar, director of the Kansas chapter of Concerned Women of America, said the Supreme Court decision was a "horribly egregious" assault on unborn children. She blamed activist judges for fabricating guaranteed access to abortion into the state's bill of rights. And, she said, anti-abortion voters should rise up and quash the judicial overreach.
"We see it as very necessary that an amendment be added to the Kansas state constitution to assure that the unborn have the right to life and pursuit of happiness," she said.
Fisher, executive director of the nonpartisan Mainstream Coalition, said health care discrimination against women shouldn't be enshrined in the constitution.
"We urge legislators to reject this proposed response, and instead to support expanded access to health care, science-based health education, more funding for public schools, higher wages, family leave and any number of other policies that have been proven to reduce the rate of unwanted pregnancies," Fisher said.
The ruckus has been brewing since April, when the Supreme Court struck down the state's first-in-the-nation ban on a specific abortion method. The opinion shielded the right to end a pregnancy in Kansas even if the U.S. Supreme Court were to overturn Roe v. Wade.
The core of the dispute stemmed from the 2015 challenge to Kansas’ ban on a second-trimester procedure performed by Overland Park abortion doctors. They filed suit against a law signed by then-Gov. Sam Brownback to prohibit dilation and evacuation abortions except to save the life or prevent impairment of the mother's health. The method is called "dismemberment abortion" by anti-abortion activists.
A Shawnee County District Court judge issued an injunction asserting the constitutional right to abortion in Kansas. In the Kansas Court of Appeals, Attorney General Derek Schmidt's appeal ended in an extraordinary 7-7 tie that threw the issue to the Supreme Court. A 6-1 majority answered that the bill of rights protected the ability of people to control their body in terms of abortion.
"We are now asked," the court’s majority said, "is this declaration of rights more than an idealized aspiration? And, if so, do the substantive rights include a woman’s right to make decisions about her body, including the decision whether to continue her pregnancy? We answer these questions, 'Yes.' "
Teresa Woody, an attorney for the plaintiff physicians in the case, said there was no need for amendment of the constitution. The high court did nothing to prevent abortion from continuing to be regulated as long as the state established a compelling government interest and regulations are narrowly structured to promote that interest, said Rachel Sweet, of Planned Parenthood Great Plains in Overland Park.
Brittany Jones, a lobbyist with the Family Policy Alliance of Kansas, said the Supreme Court's decision could be interpreted broadly enough to imperil dozens of abortion statutes and to encourage demands for other rights cloaked in constitutional exaggeration.
"It is not a very big legal leap to say that this case could open the door for an absolute right to assisted suicide, recreational marijuana, gender transition surgeries paid for by the government and a host of other things," Jones said.
Constitutional amendments can be placed on Kansas ballots if passed by two-thirds majorities of the House and Senate. A simple majority of people voting on the question would decide the issue. While governors have no formal role in consideration of constitutional amendments, Democratic Gov. Laura Kelly said she didn't think an abortion amendment necessary.
"I have never felt that we ought to put someone's civil rights up to a popular vote," Kelly said.
She said Kansans adopted a constitutional amendment banning same-sex marriage in 2005, but she was skeptical the same measure would prevail if the vote occurred now.
An interim committee of the Kansas Senate recommended in October that lawmakers consider an anti-abortion amendment when the legislative session starts in January. One element of the anti-abortion movement prefers a clean amendment simply reversing the Supreme Court, while others seek to include "personhood" language in the amendment to potentially block all forms of abortion.
The Kansas Catholic Conference let it be known the organization was prepared to play hardball to influence legislators' views.
Chuck Weber, executive director of the Kansas Catholic Conference, said the organization's support for expansion of Medicaid to 130,000 to 150,000 low-income Kansans — Kelly's top priority in 2020 — hinged on passage of the constitutional amendment, as well as a statute blocking use of Medicaid for abortion services, and of a law granting medical professionals an opportunity to invoke religious objections to abortion.
"The Catholic desire of authentic affordable health care for all people, regardless of socioeconomic status, is inspired by the example of Jesus, the great physician," Weber said.