Democrats or abortion-friendly moderates appointed six of the seven justices on the Kansas Supreme Court. As is perhaps even more true than in the case of school finance, on the issue of abortion the Supreme Court is seen as largely indifferent to the will of the citizens, including those who drafted the state constitution.
Pro-life activists are not optimistic about how the court will rule on the question of whether the constitution protects abortion. The court’s delay in coming to a decision, however, has caused some to think that the court may be more divided than its justices appeared when they heard the case.
As the AP’s John Hanna reports, “During arguments in the abortion case in 2017, four justices peppered the state’s solicitor general with skeptical questions when he argued that the state constitution cannot protect abortion rights because abortion generally was illegal when it was drafted in 1859.”
Mary Kay Culp, executive director of Kansans for Life, told Hanna that the court decision will likely make it impossible for legislators “to pass pro-life bills.” Said Culp, “That’s worst-case scenario, and that’s kind of what we expect.”
A generally pro-life legislature has passed any number of bills to protect the unborn in recent years. Legislators were generally appalled that George Tiller had turned Kansas into the world’s late term abortion capital. It no longer is that. In fact, the annual abortion rate has declined more than 35 percent since 2008, 45 percent since 1999.
Beyond abortion, the question remains as to how Kansas citizens can rein in the Supreme Court. As of now, the Kansas Bar Association plays a leading role in the selection process. A committee of nine, at least five of them attorneys, submits a list of three names from which sitting governor chooses one.
Other lawyers elect the five lawyers on that committee. The governor picks the non-lawyers. Once the governor chooses among the three nominees, the Senate does not have a say in confirming that pick.
The people have almost no say in the process. Every six years, they get a chance to vote a judge out, but unless the judge does something outrageous, the media will support the judge. It is almost impossible to gather enough support to cut through media resistance.
In 2016, pro-lifers and other conservatives tried to oust four justices on a yes-or-no statewide vote but did not succeed. They may learn very quickly whether those judges will bear them a grudge.