On Tuesday, an overwhelming majority of Kansas voters defeated a referendum that would have added language to the state constitution declaring that the state’s basic law “does not create or secure a right to abortion.”
The ballot initiative was a response to the 2019 Kansas supreme-court ruling that held the state constitution contained a “fundamental” right to abortion since 1859. That judicial usurpation, plus the post-Dobbs, pro-abortion media monsoon, made the task of the pro-life movement very difficult in Kansas. But Tuesday’s defeat in a high-turnout election was so lopsided — 58.8 percent “No” to 41.2 percent “Yes” — that pro-lifers should realize that merely finessing their messaging or raising more campaign funds wouldn’t have changed the outcome.
After the Dobbs decision restored the right of the American people through their duly elected representatives to enact meaningful abortion laws, the pro-life movement left too many questions unanswered to win a majority of the vote on August 2 in Kansas. If “Yes” had prevailed, would the Kansas legislature have banned abortion from conception or beyond six weeks of pregnancy? Would a pro-life law have included an exception for the cases of rape? Due to internal divisions, pro-life legislators punted these questions.
Presented with what seemed to be a choice between allowing the legislature to enact a near-total ban or preserving an expansive right to abortion, Kansas voters chose the latter. (Kansans may discover after future court rulings, however, that letting the 2019 supreme-court decision stand didn’t merely protect the already permissive status quo but jeopardized the state’s 22-week gestational limit on abortion, 24-hour-waiting period, and prohibition on Medicaid funding of elective abortion.)
If the pro-life movement wants to advance the cause of protecting the most vulnerable human lives — in Kansas and elsewhere — it needs more than pure motives and sound principles. In our democratic republic, it obviously must seek to translate those principles into victories that can be secured and sustained by public opinion. That does not mean cowering at the sight of a single unfavorable poll. And discovering where political consensus truly lies in any given state is not easy. But one lesson from Kansas is that if pro-lifers don’t define their position, their opponents and the media will define it for them.
By all means, pro-lifers should highlight the extremism of Democrats who almost unanimously support unlimited taxpayer funding of elective abortion and effectively back a right to abortion through all nine months of pregnancy. They also need to defend a positive pro-life agenda that can garner sufficient public support. If they want to achieve lasting protections for the unborn, pro-lifers should know that more than 75 percent of Americans nationwide have consistently said they support an exception for abortions in the case of rape (which account for 1 percent or less of all abortions). Congressman Henry Hyde, one of the greatest pro-life statesmen, allowed this exception in 1993 in order to save his amendment prohibiting federal Medicaid funding of elective abortions that has saved hundreds of thousands of lives. That exception has been part of the federal budget ever since. The lesson then, as now, is that it would have been a grave error to insist that no lives should be protected unless all lives are protected.
In addition to making prudent legislative compromises regarding hard cases, pro-life state officials need to do much more to clarify existing law regarding what ought to be easy cases. Before Roe, every state abortion law included an exception at least to save the life of the mother. Rare but real life-threatening conditions were routinely treated — doctors didn’t wait until a pregnant mother’s life was in imminent peril to act. But since the Dobbs decision, the media and Democrats have whipped up fears that standard treatment for miscarriages, ectopic pregnancies, and other life-threatening conditions may be prohibited by pro-life laws. At least some hospital administrators and lawyers have advised doctors to delay life-saving treatments. This is dangerous, and it needs to stop.
Pro-life doctors, organizations, and journalists have tried to dispel the misinformation, but it is ultimately going to fall to those in positions of power to make these hospital administrators and attorneys reverse course. If medical boards and medical associations will not act, attorneys general and governors should do what is necessary to ensure hospitals provide standard care. We have already seen examples of hospitals reacting to corrective guidance from attorneys general, but a much greater effort is needed to make it clear to all that doctors and hospitals are legally free to use the same standards of medical judgment and care when treating women with life-threatening conditions as they did before Dobbs.
The Dobbs decision was the right decision because it corrected the lie that the U.S. Constitution contained within it a right to abortion. Dobbs did not hand the pro-life movement ultimate victory, of course; it simply presented the pro-life movement with the opportunity to move policy in its direction. The last month has proven that that won’t necessarily be easy in light of the tsunami of deception unleashed by the other side. But life will always be worth fighting for. Pro-lifers should respond to this defeat with courage and prudence.