Few lessons for Pa. from Kansas abortion vote. GOP still should beware | Bruce Ledewitz

Republicans run the risk of creating the very constitutional right to abortion they are trying to prevent

August 16, 2022 6:30 am
Attendees of the Kansans for Constitutional Freedom watch party celebrate after primary election results verify Kansans voted to keep abortion a constitutional right on Tuesday. (Lily O’Shea Becker/Kansas Reflector)

Attendees of the Kansans for Constitutional Freedom watch party celebrate after primary election results verify Kansans voted to keep abortion a constitutional right on Tuesday. (Phot by Lily O’Shea Becker/Kansas Reflector).

Two days after Kansas voters rejected a ballot proposal that would have added language to the state constitution providing that there is no right to abortion or government funding of abortion in that constitution, The New York Times published a map estimating how such a ballot measure would fare in the other states.

In Kansas, 59 percent of voters voted no. The Times estimated that 64 percent of Pennsylvanians would do the same. But observers in Pennsylvania are not so sure and for good reason.

Unlike Kansas, the legal situation in Pennsylvania is murky and such an amendment might therefore pass.

What Republicans don’t realize, however, is that by pressing the amendment, they actually risk creating a state constitutional right to abortion.

The issue of how Pennsylvania would vote is not theoretical. The Pennsylvania General Assembly has passed a package of proposed state constitutional amendments, including one almost identical to the ballot question in Kansas. If approved again in the next legislative session, the abortion amendment could be on the ballot next year.

There is no legal impediment to that outcome. Gov. Tom Wolf filed suit this month to invalidate the process by which the package of amendments was passed, as well as challenging the substance of the abortion amendment in particular. The suit asked the Pennsylvania Supreme Court to use its extraordinary jurisdiction to take the case immediately.

Since the court did not act immediately, the court will probably not act at all before a vote on the amendment.

Proposed constitutional amendments are not subject to a gubernatorial veto, nor is there any super majority requirement. So, if Republicans retain majority control of the General Assembly in November and choose to go forward, voters will have their say.

Will the people of Pennsylvania vote the same way as Kansas?

In Kansas, in 2019, the state Supreme Court held that there was a state constitutional right to abortion and struck down legislative restrictions on the right.

So, the vote in Kansas protected the right to choose an abortion. If the amendment had passed, abortion would probably have been banned. Because of the vote, it won’t be.

In contrast, the state courts in Pennsylvania have never held that there is a state constitutional right to abortion. Nor have the state courts struck down any abortion restrictions. There is a right of privacy in the state constitution, but no suggestion in the caselaw that it goes beyond matters like reputation, confidentiality and unreasonable police searches.

A case pending before the Pennsylvania Supreme Court challenging the state Medical Assistance Program’s ban on abortion coverage could change this. But, given established caselaw, that is not very likely.

Roe’s reversal puts abortion access on the ballot in Pennsylvania

This legal context is important to predicting how people might vote.

Opponents of a Kansas-like amendment could not credibly tell people to vote no to protect their right to choose, because even if the amendment were rejected, there might still be no state constitutional right to abortion.

Conversely, supporters of the amendment could honestly say that voting yes—or maybe more importantly, staying home—would not change anything at all. There is no right now and there would be no right then.

In this situation, it might be hard to motivate abortion rights supporters to vote.

Now add to this murky context the strong likelihood that there would be other proposed constitutional amendments on the ballot. If abortion supporters said nothing about those other amendments, people might get confused. If they urged people to vote no on everything, they would dilute the abortion issue.

Under all these conditions, I think an amendment specifying that there is no right to abortion might well pass in Pennsylvania.

What I don’t understand is why Republican are pursuing this amendment. It seems to me they are running a risk of creating the very constitutional right to abortion they are trying to prevent.

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If the amendment passed, abortion opponents would gain nothing. There is currently no state constitutional right to abortion. Legislation restricting or banning abortion is checked by gubernatorial veto, not by the courts. There is no reason to assume that even a fairly liberal state Supreme Court like ours will suddenly start striking down abortion limits.

On the other hand, what if the amendment were rejected, despite all the headwinds? And what if that rejection turned out to be, as The New York Times predicts, 64 percent to 36 percent?

Again, nothing immediately would change. The General Assembly would still be free to restrict or ban abortion, especially if a Republican governor is in office.

But a future challenge to abortion restrictions might be viewed by the Pennsylvania Supreme Court very differently in this scenario. If the amendment were overwhelmingly defeated, and the General Assembly went ahead with severe abortion restrictions anyway, one can easily imagine the Pennsylvania Supreme Court rejecting those restrictions with the following language:

“The people of Pennsylvania, in their sovereign capacity, have expressed their desire to enshrine the right to choose abortion in this Constitution in the only way available to them—by overwhelmingly rejecting a legislative attempt to eliminate that state constitutional right. This court is not free to ignore this expression of popular will. Therefore, we recognize that there is a right to choose abortion in the Constitution of this Commonwealth.”

What could a dissent say in such a situation?

That the right to choose has been made up by the court? But if the foundation for a right to choose abortion was not in the Constitution in the first place, why was the amendment proposed? That the judicial action is undemocratic? But in light of the vote on the amendment, it would seem it is the legislature that is out of touch with the will of the people.

I am not predicting that this would happen. But it seems to me more likely than not. And since that is so, I cannot figure out what anti-abortion legislators gain by this proposed amendment that justifies the risk.

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Bruce Ledewitz
Bruce Ledewitz

Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne Kline Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page. He hosts the “Bends Toward Justice” podcast. His latest book, “The Universe Is On Our Side: Restoring Faith in American Public Life,” is out now. His opinions do not represent the position of Kline Duquesne Law School.