KANSAS HOUSE OFFERS A HOST OF ABORTION RELATED BILLS DESIGNED TO VIOLATE THE ESTABLISHMENT CLAUSE

My best guess is that if you asked most Americans, or for that matter most Kansans, what the Establishment Clause is that the most common answers would be in the range of "don't know" to "something in the Constitution."  The Establishment Clause is one of two clauses in the First Amendment to the Constitution dealing with religion.  The other is the Free Exercise Clause.

The Establishment Clause says "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."  The Establishment Clause applies to the States of the Union through the Fourteenth Amendment.   You can effectively read the clause as "Kansas shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" because that's the way a federal judge will read it.

Most folks will begin to remember what Thomas Jefferson and James Madison said in their writings on this topic.  They spoke about a wall of separation between church and state.  Jefferson wrote:

Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between church and State.

In 1947 the Supreme Court began to weigh in on the Establishment Clause.  Justice Black used the wall of separation analogy.  The case is called Everson v. Board of Education and the issue was whether reimbursing parents for the cost of transporting school children to and from school violated the Establishment Clause where the students were taken back and forth to parochial schools.  Black said paying the parochial schools directly would be a violation, but that reimbursing the parents furthered a legitimate state secular interest in safely transporting children.

Everson tells us, because all nine members of the Supreme Court told us, that the Establishment Clause reaches far beyond a state adopting a particular religion as that state's religion.  This wall separating church and state is not made of granite.  Think of it as an old plaster wall in a house where the foundation has settled.  There are cracks, sometimes there is light or air moving through the wall. 

Consider prayer and religious education for public school children.  A knee jerk bright line approach would say never, not at all, you can't do that.  Two cases show how the answer is sometimes yes and sometimes no.  McCollum v. Board of Education, is a 1948 case finding eight justices more or less agreeing (Justice Black delivered the opinion of the Court, Justice Frankfurter delivered a concurring opinion joined by Justices Jackson, Rutledge, and Burton.  Justice Jackson delivered a separate concurring opinion, and Justice Reed dissented).  In McCollum religious instruction was provided in public schools and the Court said this was a clear violation of the Establishment Clause.

The other side of the coin, off premises religious education, gets a different result in Zorach v. Clauson where public school students were given release time to attend religious instruction in the churches and synagogues of their choice.  In a 6 to 3 decision the Court said that public facilities were not being used for the purpose of religious instruction and that "no student was forced to go to the religious classroom." Justice Douglas, who wrote the majority opinion, argued that there was "no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence."  Douglas also said, "Government may not finance religious groups nor undertake religious instruction nor blend secular and sectarian education nor use secular institutions to force one or some religion on any person." (Emphasis added).

Reading those early cases we see that the discussion of the Establishment Clause tended to focus on children and education.  Today we are on the verge of new analysis of the Establishment Clause, that is because the religiously motivated Anti-Abortion forces in Kansas are proposing to excise the language of science in the state laws regarding abortion and replace that language with the language of religion.  This insidious encroachment effectively removes the objective based scientific standards of gamete, zygote, embryo, and fetus with the all inclusive, straight from the Theology in Opposition to Roe v. Wade, term "unborn child."

Justice Stevens' opinion in Webster v. Reproductive Health Center, in which he concurred in part and dissented in part, gives the Kansas Legislature words to heed.  He said, "Indeed, I am persuaded that the absence of any secular purpose for the legislative declarations that life begins at conception and that conception occurs at fertilization makes the relevant portion of the preamble invalid under the Establishment Clause of the First Amendment to the Federal Constitution. This conclusion does not, and could not, rest on the fact that the statement happens to coincide with the tenets of certain religions, see McGowan v. Maryland, 366 U.S. 420, 442 (1961); Harris v. McRae, 448 U.S. 297, 319-320 (1980), or on the fact that the legislators who voted to enact it may have been motivated by religious considerations, see Washington v. Davis, 426 U.S. 229, 253 (1976) (STEVENS, J., concurring). Rather, it rests on the fact that the preamble, an unequivocal endorsement of a religious tenet of some, but by no means all, Christian faiths, serves no identifiable secular purpose. That fact alone compels a conclusion that the statute violates the Establishment Clause. Wallace v. Jaffree, 472 U.S. 38, 56 (1985)." (Emphasis added).

When it comes to abortion and abortion related statutes, the Kansas Legislature is essentially doing a cut and paste job.  They are intent on cutting scientific language and pasting religious dogma, their insidious encroachment of religious text serves no secular purpose thus violating the Establishment Clause.

The offending bills include House Substitute for Senate Bill Number 34, Substitute for Senate Bill Number 36, House Bill Number 2035, House Bill Number 2218, Substitute for House Bill 2242, House Bill 2292, House Bill 2337, and House Bill 2377.  And do not forget House Concurrent Resolution Number 5029.  Although this ill-conceived constitutional amendment does not use the language of "unborn child" it clearly establishes gametes, zygotes, embryos, and fetuses as "persons" thus making another insidious encroachment, science be damned, of religion into law.

It is one thing to be either pro-life or pro-choice.  It is altogether another thing to be an anti-abortion extremist intent on supplanting the law of the land with a theology developed to counter the Supreme Court's opinion in Roe v. Wade.  Here the anti-abortion forces and their minions in the Kansas Legislature are posed to wreck havoc on women and force the State of Kansas into needless and expensive federal litigation. 

Adequate restraints on abortion already exist without taking the religious views of some Christians and forcing them upon the balance of society.  A July 2011 Gallup Poll found 26% of Americans think abortion should be legal under any circumstance, 51% think abortion should be legal under certain circumstances, and a minority view with 20% thinking abortion should be illegal in all circumstances. 

It is time for saner minds and adult thinking to prevail in the Kansas Legislature, it is time to reject these extreme attempts to violate the Establishment Clause with respect to abortion related laws in Kansas.  Will the grown ups please take charge!

The Abortion Cases Part Nine

Webster v. Reproductive Health Center primarily demonstrated that Roe v. Wade is on shaky grounds. The sixteen intervening years since Roe was handed down had not proved sufficient for the law to settle along the seismic fault lines between an individual's right to privacy and the States' interests in safeguarding and protecting potential human life.

The fractured nature of the opinion gives good indication that the Justices are not of one mind regarding the state of law on abortion. Here, only Part II-C is a unanimous opinion. The opinion was delivered by Chief Justice Rehnquist.

Chief Justice William Rehnquist

The Court of Appeals invalidated the public funding portion of the Missouri Statute, §188.205. In Part II-C the Court addressed the threshold question "whether this provision reaches primary conduct, or whether it is simply an instruction to the State's fiscal officers not to allocate funds for abortion counseling" Two things happened here, first the State of Missouri argued that the statute applied only to "those persons responsible for expending public funds." The second thing was that the appellees withdrew their claim. Thus the issue was moot. Now, do you see why this part was unanimous?

Rehnquist was joined by Justices White, O'Connor, Scalia, and Kennedy with respects to parts I, II-A, and II-B. Part I of the opinion dealt with a brief history of the case as it came to the Supreme Court.

Part II-A dealt with the statute's preamble. which says in pertinent part that "[t]he life of each human being begins at conception," and that "[u]nborn children have protectable interests in life, health, and wellbeing." Mo.Rev.Stat. §§ 1.205.1(1), (2) (1986). The Act then mandates that state laws be interpreted to provide unborn children with "all the rights, privileges, and immunities available to other persons, citizens, and residents of this state," subject to the Constitution and this Court's precedents. The Court of appeals invalidated the statute's preamble.

Rehnquist wrote In our view, the Court of Appeals misconceived the meaning of the Akron dictum, which was only that a State could not "justify" an abortion regulation otherwise invalid under Roe v. Wade on the ground that it embodied the State's view about when life begins. Certainly the preamble does not, by its terms, regulate abortion or any other aspect of appellees' medical practice. The Court has emphasized that Roe v. Wade "implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion." Maher v. Roe, 432 U.S. at 474. The preamble can be read simply to express that sort of value judgment.

Rehnquist deferred to Missouri State Courts to first apply the statute, and passed on finding whether or not the preamble was unconstitutional.

The Court of Appeals said that § 188.210 of the Missouri law "[i]t shall be unlawful for any public employee within the scope of his employment to perform or assist an abortion, not necessary to save the life of the mother," and § 188.215 making "unlawful for any public facility to be used for the purpose of performing or assisting an abortion not necessary to save the life of the mother" were contravened by the Supreme Court's prior decisions.

In Part II-B Rehnquist rules that the Court of Appeals sought to distinguish our cases on the additional ground that "[t]he evidence here showed that all of the public facility's costs in providing abortion services are recouped when the patient pays. Absent any expenditure of public funds, the court thought that Missouri was "expressing" more than "its preference for childbirth over abortions," but rather was creating an "obstacle to exercise of the right to choose an abortion [that could not] stand absent a compelling state interest." The opinion of this Court disagreed with the Court of Appeals.

Chief Justice Rehnquist was joined in Part II-D and III by Justices White and Kennedy.

In interpreting §188.029 Rehnquist, in Part II-D, believes that the Court of Appeals committed plain error by interpreting a statute' single sentence rather than construing the act as a whole.

That disputed part of Missouri's law provides that "[b]efore a physician performs an abortion on a woman he has reason to believe is carrying an unborn child of twenty or more weeks gestational age, the physician shall first determine if the unborn child is viable by using and exercising that degree of care, skill, and proficiency commonly exercised by the ordinarily skillful, careful, and prudent physician engaged in similar practice under the same or similar conditions. In making this determination of viability, the physician shall perform or cause to be performed such medical examinations and tests as are necessary to make a finding of the gestational age, weight, and lung maturity of the unborn child and shall enter such findings and determination of viability in the medical record of the mother."

Chief Justice Rehnquist said " We think that the doubt cast upon the Missouri statute by these cases is not so much a flaw in the statute as it is a reflection of the fact that the rigid trimester analysis of the course of a pregnancy enunciated in Roe has resulted in subsequent cases like Colautti and Akron making constitutional law in this area a virtual Procrustean bed." The Chief Justice used this opinion to attack the underpinning decision in Roe v. Wade.

As to the statute at hand the Chief Justice said "we are satisfied that the requirement of these tests permissibly furthers the State's interest in protecting potential human life, and we therefore believe § 188.029 to be constitutional."

Part III of the opinion goes to the heart of overturning Roe v. Wade. The Chief Justice said: "Both appellants and the United States as Amicus Curiae have urged that we overrule our decision in Roe v. Wade. The facts of the present case, however, differ from those at issue in Roe. Here, Missouri has determined that viability is the point at which its interest in potential human life must be safeguarded. In Roe, on the other hand, the Texas statute criminalized the performance of all abortions, except when the mother's life was at stake. This case therefore affords us no occasion to revisit the holding of Roe, which was that the Texas statute unconstitutionally infringed the right to an abortion derived from the Due Process Clause, and we leave it undisturbed. To the extent indicated in our opinion, we would modify and narrow Roe and succeeding cases.

Associate Justice Sandra Day O'Connor filed an opinion in which she concurred in Parts I, II-A, II-B, and II-C of the Court's opinion and concur in the judgment as to Part II-D.

Associate Justice Nino Scalia

Associate Justice Nino Scalia filed an opinion concurring in Parts I, II-A, II-B, and II-C and agrees with Associate Justice Harry Blackmun's view that the plurality's opinion would effectively overrule Roe v. Wade. Justice Scalia clearly states that he would overrule Roe v. Wade.

Associate Justice Blackmun wrote a dissenting opinion in which Justices Brennan and Marshall concurred. This opinion is a scathing attack on the plurality.

Blackmun wrote that never in his "memory has a plurality gone about its business in such a deceptive fashion. At every level of its review, from its effort to read the real meaning out of the Missouri statute to its intended evisceration of precedents and its deafening silence about the constitutional protections that it would jettison, the plurality obscures the portent of its analysis. With feigned restraint, the plurality announces that its analysis leaves Roe "undisturbed," albeit "modif[ied] and narrow[ed]." But this disclaimer is totally meaningless. The plurality opinion is filled with winks, and nods, and knowing glances to those who would do away with Roe explicitly, but turns a stone face to anyone in search of what the plurality conceives as the scope of a woman's right under the Due Process Clause to terminate a pregnancy free from the coercive and brooding influence of the State. The simple truth is that Roe would not survive the plurality's analysis, and that the plurality provides no substitute for Roe's protective umbrella."

Associate Justice Stevens filed an opinion concurring in part and dissenting in part. Justice Stevens rightly positions the argument regarding the Missouri statute's preamble in light of being in violation of the First Amendment's Establishment Clause.

Justice Blackmun said:" In my opinion, the preamble to the Missouri statute is unconstitutional for two reasons. To the extent that it has substantive impact on the freedom to use contraceptive procedures, it is inconsistent with the central holding in Griswold. To the extent that it merely makes "legislative findings without operative effect," as the State argues, it violates the Establishment Clause of the First Amendment. Contrary to the theological "finding" of the Missouri Legislature, a woman's constitutionally protected liberty encompasses the right to act on her own belief that -- to paraphrase St. Thomas Aquinas -- until a seed has acquired the powers of sensation and movement, the life of a human being has not yet begun."

Webster v. Reproductive Health Center was decided in 1989.