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Do not get carried away to crazyland by the Kansas amendment vote! [1]

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Date: 2022-08-03

A pro-choice activist in Brisbane, Australia 2018 (Source: Wikimedia Commons)

I was thrilled to see yesterday’s resounding popular vote in Kansas that defeated a GOP-authored initiative to amend the state’s constitution in a way that would have removed a woman’s contitutional right to abortion and would have permitted state legisators to enact new and dangerous bans against the procedure.

However, it is absolutely imperative that we (blue thinkers) do everything we can to ensure this victory does not become a larger defeat by our exaggeration of what is meant by “abortion rights”.

First, let’s back up to 2019, when the Kansas Supreme Court issued a ruling that explicitly asserted that the first section of the Kansas Constitution’s Bill of Rights bestowed on all women the right to an abortion (presumably under the terms then defined by SCOTUS’s landmark cases, Roe v Wade in 1973 and Planned Parenthood v Casey in 1992). It was a terrific decision, as explained in the linked April 2019 NPR article by Dan Margolies and Celia Llopis-Jepsen:

The decision, in which one of the seven justices dissented, cites in its first sentence the first section of the Kansas Constitution's Bill of Rights: "All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness." The decision continues: "We are now asked: '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.' "

But we must not forget that Casey modified Roe by permitting states to regulate or prohibit abortion after viability. SCOTUS did not go so far as to declare the fetus a “person” when it reached the gestational age of viability, but the Casey decision essentially had that effect. It allowed states to promote their interest in protecting viable fetuses (by enacting state laws that prohibited the mother and her doctor from aborting them) — except in cases where abortion was necessary to preserve the woman's life or health.

The so-called value them both amendment (that Kansans just voted down on August 2 by a 59% to 41% margin) was an attempt by the state’s Republican lawmakers to employ voters to overrule the 2019 Court decision by amending the state constitution to assert that “there is no Kansas constitutional right to abortion”.

So why do blue thinkers need to worry about overselling the Kansas vote? Because none of these court decisions established a fundamental right of pregnant women and their doctors to abort viable fetuses.

If blue thinkers go around saying we want zero restrictions on abortion we will be throwing the baby out with the bathwater (almost literally). Both Roe and Casey walked a tightrope, envisioning a nation where states would not be allowed to pass laws that infringe on a woman’s right to bodily autonomy before viability, but where states ought to be allowed to pass laws that protect a nearly-mature fetus from an unnecessary abortion procedure that causes its death. We should honor that delicate balance and do our best to help voters understand why it is reasonable and important to do so.

If blue policians assert they want to allow all kinds of third-trimester abortions, they might as well state that they favor all kinds of infanticide. Yes, a fetus is still living inside the mother’s body and yes she should generally have bodily autonomy. However, if fore some reason, she didn’t elect to abort the fetus when it was not yet viable, why must she be granted a right to abort it when it’s almost ready to be born?

Democratic candidates for office in 2022 and 2024 should be very careful to avoid taking the very unpopular position that a viable fetus doesn’t deserve any protections under U.S. law or state laws. Unpopular stands like that will cause the party to go down to flaming defeat.

I urge you to consider this DK diary by novapsyche on Monday (8/1), and some of the comments (e.g., by this commenter) as containing examples of exaggerated (and unpopular) visions of abortion rights.

Let’s not kill the golden goose that we were given by many Republicans (from SCOTUS Justices down to state legislators).

Let’s not be dismissive of viable fetuses when we are discussing abortion rights.

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[1] Url: https://www.dailykos.com/stories/2022/8/3/2114419/-Blue-thinkers-Do-not-get-carried-away-to-crazyland-by-the-Kansas-amendment-vote

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