The New York Times would have you believe that Kansans will be voting tomorrow “whether to remove abortion rights protections from their State Constitution.” But the Kansas constitution does not set forth any actual “abortion rights protections.” Rather, in a wild ruling in 2019, the Kansas supreme court held that the declaration in section 1 of the Kansas Constitution Bill of Rights, dating from 1859, that “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness” somehow means that any restriction on abortion must be subjected to strict scrutiny. In his impressive dissent, Justice Caleb Stegall castigated the majority for “abandon[ing] the original public meaning of section 1” and for “paint[ing] the interest in unborn life championed by millions of Kansans as rooted in an ugly prejudice.”
Tomorrow’s referendum gives the people of Kansas the opportunity to override the state supreme court’s ruling. The referendum would not adopt any policies on abortion but would instead reclaim for the people and their elected representatives the power to set abortion policy in the state. That is a step that all Kansans faithful to the state constitution ought to support, but it appears that many Kansans who oppose the abortion laws that they expect the legislature to adopt would prefer to surrender to the supreme court’s usurpation.