Briefing

Kansas' big post-Roe abortion battle

How did Kansas end up at the center of the abortion fight?

One of the first big battles of the post-Roe age is about to take place in Kansas. On Aug. 2, the state's voters will decide the proposed "Value Them Both" amendment to the state constitution that would give the Kansas Legislature the power to regulate — and, most likely, ban — abortion. The elections follow closely on the heels of the U.S. Supreme Court's decision to strike down constitutional protections for abortion rights. 

"This election has generated more attention — and more money — than any amendment in recent history," Cyndi Fahrlander and Angie Ricono report for Kansas City's KCTV. "Campaign finance reports show about $15 million has been raised to try to convince Kansans to vote one way or the other." Planned Parenthood has been a major donor to the pro-choice campaign, while the Catholic Church has been a big funder of the effort to pass the amendment — and a lot of cash has come in from out of state. 

Will Kansas ban abortion — or will this famously red state unexpectedly vote against restrictions? Here's everything you need to know: 

How did Kansas get to this point?

The state has a rather notorious history surrounding abortion. Dr. George Tiller, a longtime abortion provider in Wichita, was shot to death in his church in 2009. That followed a failed assassination attempt in 1993, as well as 1991's infamous "Summer of Mercy" demonstrations, in which the pro-life group Operation Rescue summoned thousands of activists who spent 42 days trying to blockade Tiller's clinic: More than 2,600 people were arrested during the weeks of protests that drew national attention.

But in 2019, the Kansas Supreme Court ruled that the state constitution protects a right to abortion. That constitution's bill of rights opens with this sentence: "All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness." All but one of the seven justices concluded that those words "include a woman's right to make decisions about her body." 

The apparent victory for the state's pro-choice movement was short-lived, however. "The decision turbocharged efforts among conservative legislators to ask voters to add an abortion ban to the Kansas Constitution," NPR's Dan Margolies and Celia Llopis-Jensen reported at the time. In 2021, the Kansas Legislature scheduled the "Value Them Both" amendment for the August 2022 primary ballot

What would the proposed amendment actually do?

The crux of the amendment comes in the first section: "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."

Technically, the amendment doesn't itself ban abortion — but it does give that power to the Kansas Legislature. Pro-life activists backing the amendment have used that technicality to underplay the possibility of an outright ban. The amendment "doesn't ban abortion," Leawood Mayor Peggy Dunn says in a recent ad. Instead, she says, the amendment merely allows Kansas legislators to prohibit "extreme" measures like third-trimester abortions, and to require the state's abortion clinics to meet safety standards. Abortion is already regulated in Kansas — and restricted after 22 weeks — but amendment backers say the Kansas Supreme Court ruling threatens to undo those laws.

There are reasons to believe that a ban is the end goal of the amendment's backers, however. At a June meeting of Reno County Republicans, a woman identifying herself as a regional director for the Value Them Both Coalition said a bill is ready for the legislature if the amendment passes. That legislation "would criminalize all abortions from the moment of fertilization until birth," Sherman Smith writes for the Kansas Reflector, with exceptions "for miscarriages, stillbirths and ectopic pregnancies, but not for rape, incest, or to save the life of a mother." (A spokesperson said the regional director is no longer with the group.) For the most part, though, Republicans and pro-life activists "have been careful to avoid saying what legislation they intend to pursue if the amendment passes."

So how is the election likely to turn out?

It's a closer call than you might expect in such a famously Republican state. A new poll shows the pro-life side with an advantage, albeit a small one: 47 percent of respondents said they'd vote for the measure, 43 percent were against, and 10 percent were undecided. But only 5 percent of those voters said they'd support a total ban on abortion, while 43 percent said they want no restrictions at all. (Campaign finance reports suggest the pro-choice campaign is somewhat better funded.

Turnout may be the key: Who can get more voters to the polls? The GOP-led Kansas Legislature scheduled the vote to take place on the same date as the state's midterm primary elections in August — a day when usually only the most-committed voters show up at the polls. Those voters tend to be overwhelmingly Republican. 

"Normally, lower turnout would benefit the amendment's supporters," Amelia Thomson-DeVeaux and Nathaniel Rakich report at FiveThirtyEight. But the vote was scheduled before the Supreme Court ruled in June, just a few weeks before the election, and the timing of that ruling "appears to have scrambled that conventional wisdom" about the vote — without the federal protections for abortion, the state referendum really could result in a ban on abortion. Democrats and independents are now expected to show up for the vote in larger-than-expected numbers.

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