Yesterday, Kansas voters rejected decisively an amendment to the Kansas Constitution that would have clarified that the Kansas Constitution does not protect a right to abortion. This defeat represents a major victory for the conservative legal movement. The Kansas Supreme Court, in Hodes & Nauser v. Schmidt, 309 Kan. 610, 440 P.3d 461 (2019), found that the right to an abortion was protected by provisions in the Kansas Constitution. In response, the legislature proposed a constitutional amendment that would effectively nullify the Hodes & Nauser decision. That amendment was submitted to the voters. Following an acrimonious campaign, it was defeated. The process worked, just as leading conservative legal thinkers told us it would, even if many are deeply disappointed by the result in concrete terms.
There will be post mortems that will not see the victory for principled conservative legal thought in the defeat of the pro-life amendment. For example, the proposed amendment was bizarrely worded and the question on the ballot was a simple yes-or-no vote on the text of the amendment. And the referendum was scheduled before Dobbs was decided without knowing what the result would be in Dobbs. And there was a lot of outside money spent in the referendum, not least because of Dobbs and because Kansas abortionists are now getting huge spillover business from Missouri, which significantly curtailed abortion. Yet these considerations are altogether too myopic.
The conservative legal movement, in the context of Dobbs, has long argued that the only principled approach to abortion under the Constitution is neutrality. Justice Brett Kavanaugh, in his separate concurrence in Dobbs, puts it like this:
On the question of abortion, the Constitution is therefore neither pro-life nor pro-choice. The Constitution is neutral and leaves the issue for the people and their elected representatives to resolve through the democratic process in the States or Congress—like the numerous other difficult questions of American social and economic policy that the Constitution does not address.
Dobbs v. Jackson Women’s Health Organization, No. 19-1392, 597 U.S. ___, ___ (2022) (Kavanaugh, J., concurring). Notre Dame law professor Rick Garnett, in a message to Samuel Bray (another law professor at Notre Dame) posted on The Volokh Conspiracy in December 2021, argued that Justice Kavanaugh’s approach was in line with the position taken by Chief Justice William Rehnquist during the battle over Casey thirty years ago. In Garnett’s view, this is “the only stable ground available.” As Justice Scalia put it in Casey: “States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 979 (1992) (Scalia, J., concurring in judgment in part and dissenting in part).
It is hard, therefore, to see the defeat of the Kansas amendment as anything other than a victory for the principled, even scrupulous, neutrality of Rehnquist, Scalia, and Kavanaugh. Kansas voters, considering whether to change Kansas law, made a free decision to continue protecting a right to abortion on demand in the Kansas Constitution. Federal courts cannot intervene. This is also a victory for democratic pluralism, an emerging response to classical legal thought (sometimes called integralist legal thought, though I would disagree with the identity), advanced by writers like Ross Douthat of the New York Times and Nathaniel Peters of the Morningside Institute. Following Jacques Maritain and Yves Simon, they argue that in a pluralistic society (like the United States) Catholics (or other believers) cannot simply impose by means of state power certain desired policy outcomes. It would be a violation of religious freedom and all sorts of other freedoms besides to do so. As Ryan Anderson, head of the influential Ethics and Public Policy Center put it very recently at the Napa Institute conference, pro-life supporters must, in a pluralistic society, be in the persuasion business. And, of course, the persuasion business necessarily entails the possibility of failure, as Anderson himself well knows from his time trying to resist the march forward of same-sex marriage.
There will be, I think, other victories for the conservative legal movement. For example, in Indiana, the General Assembly is sitting in a special session, debating Senate Bill 1—which would enact a ban on abortion in Indiana under most circumstances. There has been vigorous debate on both sides, with many witnesses testifying before the relevant committees, heated arguments on the floor of the Senate and now the House, and protesters making their voices heard in the State House. Neither side is especially happy with the bill as amended. Susan Glick, the staunchly pro-life senator who introduced the bill, expressed her unhappiness with it when it passed the Senate (narrowly). Already the House is adopting amendments rejected by the Senate. It is unlikely that the Senate will concur in the House amendments, and a conference committee seems probable. Compromise—the essence of the legislative process envisioned under the Constitution—seems likely, leaving both pro-life advocates and supporters of abortion disappointed.
It is true, as I have previously argued in Ius & Iustitium, that the posture of principled neutrality, of letting democratic processes decide the moral issues of the day, is akin to Stephen Douglas’s position in the Lincoln-Douglas debates. The Constitution lets each state decide the question for itself, and each state should respect the decisions made by the voters of other states. If we leave the decisions of moral questions alone and focus on material prosperity, Douglas argued, the common good will be advanced marvelously. It did not work out that way in the question of slavery, and, in fact, Kansas was an early point of failure before the Republic was plunged into blood-soaked horror. But that was then; this is now.
It is also true that, from the classical legal perspective, this principled neutrality is altogether alien to the proper role of government. The purpose of law is to make men virtuous (Ethic. II.1, 1103b1-5; In II Ethic. L.1, no. 251; ST I-II q.90 a.3 ad 2). Virtue requires training, and to ensure that everyone receives that training there must be laws (ST I-II q.95 a.1 co.). While laws should not repress every vice, they should repress those vices that most people can abstain from and which are primarily to the injury of others (ST I-II q.96 a.2). And laws should not direct merely private virtues, but virtues that can be referred to the common good (ST I-II q.96 a.3). Principled neutrality on a matter of morality—and particularly a matter of vice that tends toward the injury of others—is a bizarre idea within the classical tradition. Indeed, this is precisely the sort of thing that cannot be left to principled, scrupulous neutrality.
And within the specifically Catholic tradition, the leader of the state has an obligation to order his government toward eternal beatitude. (De regno I.16 [II.4], no. 114). Aquinas puts it like this: “Quia igitur vitae qua in praesenti bene vivimus finis est beatitudo caelestis, ad regis officium pertinet ea ratione bonam vitam multitudinis procurare secundum quod congruit ad caelestem beatitudinem consequendam, ut scilicet ea praecipiat quae ad caelestem beatitudinem ducunt, et eorum contraria secundum quod fuerit possibile interdicat.” — “Therefore, since the beatitude of heaven is the end of that virtuous life which we live at present, it pertains to the king’s office to promote the good life of the multitude in such a way as to make it suitable for the attainment of heavenly happiness. That is to say, he should command those things which lead to the happiness of Heaven and, as far as possible, forbid the contrary.” (De regno I.16 [II.4], no. 115). What leads to this happiness: the law of God, as taught to the king by the priest. (Ibid.; cf. De regno I.15 [II.3], nos. 110–111).
These considerations, however venerable they may be, and however deeply rooted not merely in the history and tradition of the American people but in this history and tradition of the west going back to Aristotle’s day, are, in the view of the conservative legal movement irrelevant to the question of abortion in America. The Constitution is silent, and the federal courts must also be silent. Voters in each state must be free to choose for themselves the proper balance between what Justice Kavanaugh called the “extraordinarily weighty” interests on both sides of the question of abortion. Federal courts should not impose, for example, the view of the Fourteenth Amendment, no less rooted in the sources and methods of originalism, advanced by John Finnis and Josh Craddock.
The pro-life movement in Kansas, advancing a change to Kansas’s law, without reference to Roe or Casey, failed to persuade a majority of voters to accept that change. This is ultimately what the conservative legal movement wanted. Justice Kavanaugh, at the oral argument in Dobbs, was at pains to indicate that he thought that the Finnis-Craddock argument was unpersuasive. Going back, as Professor Garnett indicates, to Rehnquist and Scalia, the position of the conservative legal movement on the question of abortion has been principled neutrality. Today, Catholic thinkers like Douthat, Anderson, and Peters believe that persuasion in a pluralistic society is the best way to advance conservative causes.
The defeat of the pro-life amendment in Kansas is, therefore, a signal victory for the conservative legal movement and serious conservatives more broadly. The result last night in Kansas is the result of a process that is precisely what we have been told (and told and told) is not only required under our Constitution but also by the divine and natural law. And if the price seems a little high, especially the price borne by the unborn children of Kansas and surrounding states, well, in the words of Indiana’s second-greatest poet, ain’t that America?
Pat Smith
