The Value Them Both amendment protects abortion in Kansas

By Deborah Stilt — The well-intentioned Value Them Both amendment in Kansas (HCR5003) is heading to the primary ballot, and if passed, will amend the Kansas constitution. But many don’t realize that this amendment fails to protect pre-born babies and their mothers and instead, expressly grants the ability to regulate abortion, further enshrining it into law. While HCR5003 greatly misses the mark, there is a solution that would, in fact, “value both”—a personhood amendment.

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The Kansas Supreme Court took up the question of a constitutional right to abortion in 2019, in Hodes & Nauser v. Schmidt, after two abortion providers, Herbert Hodes and his daughter, Traci Nauser, challenged the law known as the Kansas Unborn Child Protection from Dismemberment Abortion Act, which prohibited dilation and evacuation (D&E) abortions—the grisly procedure used for most second-trimester abortions.

In their decision, the Court determined abortion to be a constitutional right in the state. Not only did this repeal the law on D&E abortions, it also nullified most of the laws that had passed since abortion was legalized in the state in 1970. Pro-lifers found themselves at a loss. The incremental gains they had worked so hard for were suddenly null and void, with little means to appeal.

In this case and others, abortion advocates had used the courts to successfully challenge compromised, incremental “pro-life” laws in order to embed abortion further. 

An opportunity falls flat

Devastated at the sudden, unfettered access to abortion, Kansans began to rally, pushing for a constitutional amendment that would say there is no “right” to abortion in their state. The Value Them Both amendment, however, completely misses the mark.

The amendment reads as follows:

“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 United States Constitution, the people, through their elected state representatives and state senators, may pass laws regarding abortion, including, but not limited to, in circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother.”

(emphasis added)

The Value Them Both amendment is not an abortion ban. Instead, it:

• Reverses a state judicial right to abortion
• Creates a state legislative right to regulate abortion
• Prevents mandated state funding of abortion
• Equally allows a New York-style abortion-on-demand bill just as it allows compromised abortion regulations.

Here is what the amendment does not do:

• It does nothing to assert the equal right to life or equal protection of pre-born children.
• It does not prevent the legislature from legalizing abortion on demand.
• It does not force the legislature to create rape and incest or health exceptions in future “pro-life” regulations, although the mention of rape and life of the mother is highly suggestive that this standard would apply.

If the amendment was consistent with its title to “value them both,” then it wouldn’t leave it up to the whim of future legislatures to decide whether innocent children can be legally killed in Kansas, it would simply prohibit it.

Yet, both the Kansas Senate and House recently approved the measure with the required two-thirds majority. The amendment question is scheduled to be on the August, 2022, primary ballot. At that time, it will need a simple majority—50% plus one vote—to become law.

Gualberto Garcia Jones, Esq., legal counsel for the Personhood Alliance, responds:

“This amendment is worded extremely poorly and will confuse people by the mention of rape and life of the mother. It implicitly upholds Roe v. Wade by subjecting state regulations to ‘the U.S. Constitution,’ by which they mean the unjust jurisprudence of the Supreme Court as established by Roe.

The amendment could have achieved all the positive effects of overturning the judicially created state ‘right’ to abortion without enshrining the legislature with the unrestricted power of life and death over the babies.”

Instead of proposing a simple amendment that said there is no right to abortion in the Kansas constitution, says Garcia-Jones, “they made this bill about simply taking the power of life and death from the state court and giving it to the legislature (under the ultimate tyranny of the federal court’s interpretation of the Constitution).”

The Value Them Both amendment ignores the fact that the right to life of human beings is inalienable. This is a right that cannot be taken away by a state or federal court, legislature, executive, or anyone else.

Isn’t the goal of the pro-life movement to end abortion?

For 50 years, the pro-life movement has primarily focused on one strategy—chipping away at the “right” to abortion by passing laws which would reduce the number of abortions, while ostensibly working toward legal protection for all innocent human life. Meanwhile, despite hundreds of laws being passed at the state level, an estimated 62 million pre-born children have been killed in America since the unjust decision of Roe v. Wade in 1973.

This strategy was destined for failure from the very beginning. Why?

Because we cannot regulate that which we prohibit.

If we truly intend for the slaughter to end, we need to stop putting rules around when it’s acceptable. If it’s wrong for some children to be murdered, then it’s wrong for all of them to be murdered. Why would we want to regulate that?

A different strategy

In 2009, Personhood Kansas began working on a personhood amendment, with limited success. The lack of traction was largely the result of opposition from “pro-life” politicians who believed it couldn’t work and were determined to continue a compromised, incremental approach. Below is footage from 2019, when Personhood Kansas president Bruce Garren testified before the Special Committee on Federal and State Affairs in the Kansas House to urge them to pass the Kansas Personhood Amendment, which had already been introduced in that committee.

Unfortunately, the committee chose to push the Value Them Both Amendment forward instead.

However, with the recent spotlight on abortion, coupled with the inadequacies of Value Them Both, there is a new opportunity to educate the public and protect all pre-born children equally in Kansas, once and for all.

 “Any attention we can get for the unborn is good attention. We are only going to be defeated in this if our culture forgets the unborn. I am encouraged by the controversy this is stirring up. We can use the visibility abortion will get in the next 18 months to get people thinking about an amendment that protects all children.”

– Bruce Garren, president of Personhood Kansas

The pro-life movement has done great harm to its own ability to succeed by promoting legislation that abandons children conceived in rape, children with disabilities, and other politically unfashionable groups of human beings. The only strategy that will ultimately work is one that recognizes and protects the God-given, inalienable right to life of ALL human beings as legal persons, at every stage of their biological development and in every circumstance.

The answer in Kansas, and everywhere else, is personhood.

To learn more about how the Personhood Alliance stands for human life and human dignity, without exception and without compromise, subscribe to our email list.

Deborah Stilt is the social media coordinator for the Personhood Alliance and has been active in pro-life media for several years. But most importantly, she’s a California mom who is fighting against the lies of the culture and for the protection of every human being without exception.