Why Vote “Yes” on the Value Them Both Amendment?

On the primary election of August 2, 2022, Kansans will be presented with a ballot question about the constitutional amendment measure Value Them Both

It is unlikely, but possible, that anyone taking the time to read this is unsure about how they will vote. It is unlikely that readers are unfamiliar with arguments for and against abortion.

The text of the proposed amendment is as follows:

§22. Regulation of abortion. Because Kansans value both women and children, the constitution of the state of Kansas does not require government funding of abortion and does not create or secure a right to abortion. To the extent permitted by the constitution of the United States, the people, through their elected state representatives and state senators, may pass laws regarding abortion, including, but not limited to, laws that account for circumstances of pregnancy resulting from rape or incest, or circumstances of necessity to save the life of the mother.

Ballot form with explanatory statement (see here)

The amendment is largely inspired by the 2019 Kansas Supreme Court decision in Hodes & Nauser v. Schmidt. I have written elsewhere about this case, which ruled that the following lines of the Kansas state constitution imply a natural right to abortion: “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”

Voting “yes” for the proposed amendment would effectively nullify the decision and allow abortion to be regulated by the state of Kansas at the legislative level. Voting “no” would leave things as they stand based upon the court’s ruling (see Ballotpedia).

There is, however, a consensus argument to consider. It is based upon what we Americans and Kansans still hold in common—indeed, must hold in common as the polarization of our country grows.

If you value the ability to participate in the self-governance of the state of Kansas, then you ought to vote “yes” on the Value Them Both amendment.

Presumably, we Kansans still hold in common the value of participatory self-governance.

The reason behind this argument is straightforward. The 2019 decision in Hodes severely hinders the ability of Kansans to participate in self-governance in regard to abortion laws. This is true regardless of whether or not you think the decision is good jurisprudence.

The argument is especially sound if you think that Kansans ought to be the ones ultimately responsible for interpreting those words of our state constitution: “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.” All the more is this so since the Wyandotte Constitution made Kansas a free state. Kansans have long understood the truths contained in these words.

In their campaigns to promote “no” or “yes” votes, both sides have employed misleading claims. From the “no” side one hears the half-truth that abortion is still well regulated in Kansas. Yet the Hodes decision makes it easier to challenge such laws. By the same reasoning, it is just as misleading to claim, on the “yes” side that all state laws are “presumed unconstitutional.” They could be, and perhaps more likely than not would fall if challenged. But many are still in force.

Yet this reinforces the consensus argument. It is sounder self-governance to be ruled by laws. The truth is that a “yes” vote makes this more possible, while a “no” vote makes this far less possible, given the Hodes decision.

Truth is a better defense.

This brings me to certain points to be made about videos produced by the advocacy group “Kansans for Constitutional Freedom,” which is backed by a number of large pro-abortion groups. Where does the “truth” lie? In each case, one finds a half-truth amounting to misleading claims or falsehoods.

  • “Not Alone” — Implies that future laws would ban abortions in the case of the mother’s life being in danger, or cases of rape or incest. Based upon existing legislation and polls about the public’s views on abortion, this seems unlikely, even with the conservative majority in Kansas currently. This is misleading.
  • “Drive” and “SCOTUS” — Both imply that the amendment would lead to a “total ban” on abortion, calling it a “virtual” or “backdoor ban”. This is misleading, for reasons just given above.
  • “Oath” — Makes the same misleading claims as the above, and falsely states that the amendment itself “ties the hands of doctors in Kansas,” as if that is its immediate effect. It also makes the same false claim as the next video.
  • “Mandate” — Falsely equates the amendment to a “strict government mandate”. The constitution by definition is the people’s social mandate to the government, not vice versa.

In each case, what is ignored is the fact that the Hodes decision has already severly limited the ability of Kansans to regulate abortion. 

This is the value of the consensus argument. If you value the ability to participate in the self-governance of the state of Kansas, then you ought to vote “yes” on the Value Them Both Amendment, whether you are pro-life or not.

I will be voting yes.

Recommended reading:

“Vote yes on Value Them Both amendment so Kansans can regulate abortion via lawmakers”

“Kansas Supreme Court made the wrong decision in Hodes & Nauser v. Schmidt. Here’s why.”

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