This is a year in which one issue, the budget, has attracted most legislative and public attention. But the Kansas House has not limited itself only to considering how to deal with the state’s large deficit. Recently the House passed what is, in my opinion, a rather curious piece of legislation.

The House passed a bill which would require the next attorney general of Kansas, whoever that may be, to bring a lawsuit in the Supreme Court of Kansas asking the Court to decide that birth begins at conception. Supporters of this bill have given as the reason for its passage that it would start a process which would permit the U.S. Supreme Court to overturn Roe v. Wade.

Abortion is one of the most controversial issues in America today. It is also one of the most complex. It is an issue that has medical, moral, and religious dimensions, but which has been left to legislatures and courts to determine. The struggle over abortion law is one which has split the American public, has had significant effects on both elections and judicial appointments, and has evaded any long-term solution. Indeed, it is an issue which, for many Americans, can not be resolved by compromise.

Over the past several decades, the law on abortion has involved both state legislatures and state and federal courts (and, to some degree, the U.S. Congress). The most common scenario has been one in which a state legislature has passed a law limiting abortion in some manner and then this law has been challenged in the courts. In a few notable cases, these challenges, because they involve fundamental constitutional questions, have been resolved by the Supreme Court of the United States.

But this is not the path the Kansas House has now decided to follow. Instead, the House has enacted legislation not to limit abortions, but, rather, to require the attorney general to seek a decision from the Kansas Supreme Court on the issue of when life begins. One must ask why the House decided to follow this path.

First, there is some doubt among lawyers whether the law under which the House seeks to act in this way is itself constitutional. If this is raised as an objection, this could itself pose difficult questions for the Supreme Court, questions that could cost a large amount of state funds and take an inordinately long time to be resolved.

Second, one must ask how the Kansas Supreme Court will react to such an unusual lawsuit. Will it, in fact, provide the answer supporters of the House bill seek? Would it not be far simpler and legally more sensible for the supporters of this bill simply to introduce legislation which would limit abortions in a way which would lead to a traditional legal challenge? To do so would require the House to openly discuss the abortion issue and would not involve the attorney general’s office in the subsequent litigation.

I would have thought that whatever side one takes on the abortion issue, one would want to have open debate and a clear resolution. This is far too important an issue to complicate further than necessary by unusual legislative and legal maneuvers. Why mix in questions of separation of powers between the Legislature and the executive branch of the jurisdiction of the Supreme Court in so significant a social, moral, medical, religious, and legal issue?

I do wonder whether proponents of this bill have thought about the potential costs and delays involved in such litigation. I think it is quite likely that the process, as envisioned by the bill, would require years to be resolved in the Kansas courts and would cost hundreds of thousands of dollars.

I think that there is no question that the legality of abortion is an issue which will not go away. Even if Roe v. Wade is reversed by the U.S. Supreme Court, it will not go away. There are too many people on every side of this question who feel too strongly for any court decision to bring closure on the issue. Lawyers know that in order for an issue to resolve fully in a court requires that there be general social acceptance of the decision.

One need only look at the U.S. Supreme Court’s decision in Brown v. Board of Education. This decision, although the court required “all deliberate speed” took decades to be implemented and, indeed, has not yet been fully implemented in every part of the nation. The Supreme Court of the United States does not have the power to eradicate racism through its decisions nor can it fully or finally resolve the abortion issue.

Whatever decisions are sought out, they should be sought out in a clear manner, one which leads to helpful discussion and does not bring in extraneous and irrelevant issues. I am afraid that the current House bill does not achieve these goals.

Mike Hoeflich is a professor in the Kansas University School of Law.