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Savannah Stalker of Topeka, Kansas, listens to a loudspeaker outside the Kansas Statehouse during a rally to protest the Supreme Court’s overturning of Roe v. Wade on June 24. Charlie Riedel/AP
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Rachel M. Cohen is a senior reporter covering social policy. She focuses on housing, schools, labor, criminal justice and abortion rights and has reported on these issues for more than a decade.
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: This story was originally published on July 27, and on August 2, 2022, Kansans voted to reject this amendment. For the latest coverage of the results,
On Tuesday in Kansas, abortion rights will be tested at the polls for the first time since the Supreme Court overturned Roe v. Wade
In 2019, the Kansas Supreme Court ruled that the state constitution protects the right to abortion. Now voters are being asked to consider an amendment that would explicitly remove that right, opening the way for Kansas’ Republican-controlled legislature to further restrict or ban abortion, as neighboring Texas, Oklahoma and Missouri have done.
The other elections taking place Tuesday are the state’s Democratic and Republican primaries, although registered independents — who make up 29 percent of Kansas voters — can also vote on the abortion amendment. The timing is deliberate: Republican lawmakers placed the measure on the August primary ballot instead of the November general election, hoping turnout would remain low. Republicans outnumber Democrats in the state about two to one.
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Four other states will vote on abortion-related ballots later this year, all in November. In Kansas, millions of dollars are pouring in from supporters and opponents of the amendment, and the outcome is being closely watched nationally as a potential signal of how energized voters are about abortion rights.
The outcome will also have major implications not only for Kansas residents, but also for women from across the region who rely on Kansas for reproductive care as their own states close access to abortion. The Guttmacher Institute predicts that Kansas could see a more than 1,000 percent increase in abortions after
You’d be forgiven if you had trouble understanding the text of the amendment, which would add a section to the state constitution that says both “Kansas shall not require public financing of abortion” and that the people, through their elected representatives, “may pass laws relating to abortion, including, but not limited to, laws that take into account circumstances of pregnancy resulting from rape or incest, or circumstances necessary to save the life of the mother.”
The language could turn off the average voter, said Neal Allen, a political scientist at Wichita State University. “You could read it and think you voted to remove government funding for abortion when there is no government funding for abortion,” he said. “And there is language that refers to exceptions to preserve the health of the mother and for rape and incest, but there is nothing about the amendment itself that would create those exceptions.”
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Supporters of the amendment, organizing under the banner “Value Them Both” — a reference to valuing “women and unborn children” — have worked to convince voters that a “yes” to the amendment would not lead to an abortion ban and would simply allow the legislators to regulate the procedure.
Many of their claims have been dubious at best and have caused considerable confusion. Appreciate them Both supporters have emphasized in their ads that the amendment “restores our ability to place basic regulations on the abortion industry.” In fact, abortion remains highly regulated in Kansas. They say the amendment would simply allow lawmakers to introduce rules such as requiring parental consent, “stopping painful late-term abortions” and barring public funding for abortion. But Kansas already requires parental consent, already prohibits public funding of abortion, and already prohibits abortion after 22 weeks.
If the amendment passes, there is nothing to stop Republican lawmakers from enacting a total or near-total abortion ban, and political experts say the likelihood of such restrictions moving forward in that context is very high.
Richard Levy, a constitutional law professor at the University of Kansas, said that while the amendment is not itself a ban on abortion, it is safe to assume that Kansas lawmakers will pass very restrictive abortion laws if the amendment passes. He pointed to the Republican supermajorities in the House and Senate, the Kansas legislature’s long history of passing laws to restrict abortion and the fact that supporters of the amendment have indicated that is their goal.
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Earlier this spring, a Republican lawmaker in Kansas introduced a bill to ban abortion nationwide with no exceptions for rape or incest. It did not receive a hearing or a vote, but last month a regional director of the Value Them Both coalition was caught on tape telling a group of Republicans that they are ready to support the bill if the amendment passes. A spokesman for both did not return his request for comment, but told the Kansas Reflector that the regional director “is no longer with the organization and was not speaking on behalf of the coalition.”
Kansas — a reliably Republican state nationally — has a long history of conflict over abortion rights. In 1991, an abortion clinic in Wichita, at the time among the few in the country that would provide third-trimester abortions to women with life-threatening pregnancies or severe fetal abnormalities, became a magnet for protesters in what was seen as a sign of an emboldened national movement against abortion rights. In 2009, the doctor who performed these abortions, George Tiller, was murdered while attending church.
The Kansas state legislature banned abortion after 22 weeks in 2012 and passed a law in 2013 stating that life begins at conception. But Kansas voters have repeatedly expressed opposition to full abortion bans. A poll released last year by Fort Hays State University found that 60 percent of Kansas residents opposed making abortion illegal in all circumstances, including in cases of rape, incest or where a woman’s health is at risk.
A narrow majority of respondents – 50.5 per cent – also said their state government “shouldn’t place any rules on the circumstances under which women can get an abortion”, compared with just a quarter who disagreed.
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The first public poll of the Kansas amendment was released on July 18 and found that only 5 percent of likely primary voters supported a total abortion ban. Near-total bans, such as those enacted in neighboring states, were also deeply unpopular among respondents.
A protester stands on the steps of the Kansas Statehouse during a demonstration against the Supreme Court’s decision on abortion on June 24. Charlie Riedel/AP
Russell Arben Fox, a political science professor at Wichita-based Friends University, also believes Republicans would “absolutely” pursue an abortion ban if the amendment were to pass.
“The simple truth is that anyone with even a minimal understanding of Kansas politics must realize that pursuing a total ban is exactly the kind of policy the Republican leadership will pursue,” he said. “Besides the obvious influence that staunch anti-abortion conservatives have long had within the Kansas Republican Party, and besides the fact that one of the leaders of the pro-Value Them Both movement was caught on tape .. . . there’s also the fact that we know that game plans detailing the introduction and passage of full state abortion bans prepared by the National Right to Life Committee have been circulating among top Republicans in Topeka all summer.”
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One of the first hurdles for organizers working to preserve abortion rights in the state is helping voters understand what they are voting on.
Ashley All, a spokesman for Kansas for Constitutional Freedom, the coalition organizing against the amendment, said it has been “quite challenging” to make sure voters understand the implications of the proposal.
The amendment is a response to a 2019 Kansas State Supreme Court ruling that concluded that the state constitution’s personal autonomy protections include a person’s right to terminate a pregnancy.
The Supreme Court case stemmed from a challenge to a 2015 ban passed by the Kansas legislature on dilation and evacuation, a second-trimester abortion procedure. After the 2019 decision, the D&E ban was struck down as unconstitutional.
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Abortion restrictions are not inherently prohibited, the state Supreme Court ruled, but starting in 2019 they must be narrowly tailored, which the D&E ban was not. Appreciate them Both supporters argue that all restrictions are now “presumptively unconstitutional,” although legal and political experts say that’s a poorly supported position.
“In the three years since the decision was handed down, only the law originally challenged in the lawsuit and one additional abortion law in Kansas, one dealing with the excessive health regulations imposed by the state government on abortion clinics, have been overturned,” noted Fox.
Although Kansas is a Republican state that is conservative, it has some distinctive features from other neighboring red states. Allen of Wichita State University says one factor is that Kansas has one
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