The state is the first to consider a ballot measure on abortion since Roe v. Wade was overturned.
The state is the first to consider a ballot measure on abortion since Roe v. Wade was overturned.
K ansans will vote Tuesday on a proposed constitutional amendment declaring that the state constitution does not protect a right to abortion, marking the first such ballot measure to come to voters since the Dobbs decision.
The proposal is being put to voters for a reason: In 2019, the Kansas Supreme Court ruled that the state constitution protects a right to abortion, which meant that even in the wake of Roe v. Wade’s reversal, Kansas can’t enact more protective pro-life laws. The effort to pass this amendment predates Dobbs v. Jackson Women’s Health Organization, the case in which the U.S. Supreme Court overturned Roe, and originated from a pro-life campaign to counteract the prior court ruling that has functioned as the state’s own Roe decision.
The proposed amendment, dubbed the Value Them Both amendment, would add this language to the Kansas constitution:
Regulation of abortion. 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 constitution of the United States, the people, through their elected state representatives and state senators, may pass laws regarding abortion, including, but not limited to, laws that account for circumstances of pregnancy resulting from rape or incest, or circumstances of necessity to save the life of the mother.
Despite the state supreme court ruling that found a right to abortion, Kansas does have some pro-life laws in place, including a restriction on most abortions after 22 weeks of pregnancy, an ultrasound requirement, a 24-hour waiting period prior to abortion, parental consent for minors seeking an abortion, a prohibition on abortion pills provided via telemedicine, and a prohibition on taxpayer-funded abortion.
Proponents of the amendment argue that even these types of regulations might not be able to remain in place as a result of the 2019 ruling, which has already led to one court striking down state laws that governed licensing and safety requirements for abortion facilities.
Experts tracking the campaign say that the final vote on the measure is expected to be quite close, even though Kansas voters tend to tilt pro-life. One poll taken last December asked Kansas residents a series of questions about abortion in light of the pending debate over the amendment and found a mixed bag, though none of the questions directly pertained to the amendment and most focused on aspects of the debate that offered little clarity about where Kansans stand on the issue.
Opposition to the amendment has centered around the false claim that, if the amendment passes, it will automatically result in stricter abortion regulations across the state or even a total abortion ban. Kansas governor Laura Kelly, a Democrat, has made such a claim: “The amendment is written in such a way that the proponents of the amendment want to suggest that this would just leave things as they are in Kansas. But that’s not true,” she said on a podcast with the Kansas Reflector. “What would happen if that amendment would pass is that the legislature would immediately come back with some very severe restrictions on a woman’s ability to control her own fate.”
A Washington Post piece on the fight over the amendment quoted a professor who attempted the same conflation:
Value Them Both and other antiabortion advocates — who have knocked on more than 100,000 doors — have taken the public position that the ballot measure will not automatically lead to an outright ban on abortion but, rather, protect what they term reasonable safeguards passed before the state’s high court decision in 2019. . . .
University of Kansas law professor Stephen McAllister, a former clerk for Supreme Court Justice Clarence Thomas who served as the Trump-appointed U.S. attorney for Kansas, said that they are being disingenuous, and the real goal of the amendment is to pave the way for the Republican-led legislature to pass an outright abortion ban in its next session in January.
“Their big lie is that they simply want to clear the decks so we can have reasonable debate on what regulations might be appropriate, and that is not it at all,” McAllister said. “The goal is to clear the decks so they can ban abortion next session. That’s what this is about.”
But both Kelly and McAllister give away the game in their own comments, obliquely conceding that the amendment merely makes room for the legislature to deliberate and pass laws on abortion in the absence of a heavy-handed court ruling. Proponents of the amendment, in other words, are entirely correct to say that the amendment itself won’t change Kansas abortion laws. If the amendment succeeds, it will allow state lawmakers to legislate on abortion without a flawed state supreme-court ruling tying their hands.
A win for the amendment, in other words, is a win for Kansans, who will be able to vote for lawmakers who can then enact the will of the people as it pertains to abortion.