Impact of Kansas fertilization declaration in new law

04/19/2013 08:00

   by Kathy Ostrowski


The Pro-Life Protections Act, HB 2253, is headed to Gov. Sam Brownback for his signature. Section two of the bill says that “the life of a human being begins at fertilization” and that Kansas will uphold the rights and privileges for all human beings except where barred by the U.S. Supreme Court.  (See legal impact of this declaration here, from National Right to Life.)

There has been much misreported about the Pro-Life Protections Act, including the impact of this declaration on fertilization (Read James Taranto
here about abortion supporters’ alarmism on this.)

Section two is neither a personhood measure, nor affects birth control (protected under Kansas law here.)  “Personhood” measures attempt to defy Roe v Wade by (1) winning a state ballot initiative that declares the state constitution forbids abortion, and (2) hoping the federal courts will allow it to stand. Kansans for Life does not believe such a strategy will succeed due to the federal Supremacy Clause.

The language in section two was copied from Missouri, which the U.S. Supreme Court let stand in 1989 in its Webster decision. Thirteen states have adopted it. Under the declaration of life begins at fertilization, the state may legislate with a preference for childbirth over abortion –in effect “corraling”  Roe from  drifting into other areas.  For example, because of Roe,

  • some states don’t allow criminal prosecution for 2 victims when a pregnant woman is murdered –Kansas does allow such prosecution, under Alexa’s Law passed in 2007 (see here);
  • some states allow the filing of lawsuits for compensation that a disabled child exists that ‘should have been aborted’ (these are wrongful birth lawsuits that Kansas now doesn’t allow, under the newly passed Kansas law, “Civil rights of the Unborn.”

The reality is that every state has been working for 40 years –either to promote abortion or to promote life –and Kansas is pro-life. Being a pro-life state is more than passing law, it is how our citizens stand against the forces that push abortion. Our state has continued to increase the number of centers across the state where pregnant women can get free assistance.


In 1973, the Roe Court cherry-picked some language to define a “constitutional” person such that homicide of the unborn could be accepted. But it was never denied that unborn were human beings, just that they could be aborted because they were not “protected constitutional persons” like their mother and the abortionist.

In 2007, for purposes of criminal prosecution, Kansas legally defined “person” and “human being” to include “unborn child” and  furthered defined unborn child as “a living individual organism of the species homo sapiens, in utero at any stage of gestation from fertilization to birth.” (
see here)

In 2011, for purposes of abortion informed consent, Kansas adopted the South Dakota statement (approved by the eighth circuit appellate court in 2008) that “abortion terminates the life of a whole, separate, unique, living, human being.”
(see here, section b(5))

Now in 2013, the legislature has officially adopted the scientific fact that life begins at fertilization as an undergirding for further public policies.