Kansas Is Key: Pro-Life Amendment Referendum Likely to Be First Test in Post-‘Roe’ Landscape
If the U.S. Supreme Court overturns ‘Roe v. Wade’ in June, all eyes will turn to the Sunflower State, where voters will decide whether to allow the state legislature to restrict abortion.
If the U.S. Supreme Court overturns Roe v. Wade in June, all eyes will turn to Kansas, where voters will decide whether to allow the state legislature to restrict abortion.
On Aug. 2, about five weeks after the nation’s highest federal court is expected to issue its decision, the so-called “Value Them Both” constitutional amendment goes to a statewide referendum. It may be the first test of where voters are on abortion in a post-Roe world.
“We’re being targeted by pro-abortion groups already. They understand that Kansas is going to be the first of the dominoes to either stand or fall. And it’s going to be a knockdown, drag-out,” said Chuck Weber, executive director of the Kansas Catholic Conference, which represents the four bishops of Kansas in political matters.
The proposed amendment wouldn’t make any abortions illegal. Instead, it would add language to the Kansas Constitution stating that “the state of Kansas does not require government funding of abortion and does not create or secure a right to abortion.” That would allow the state legislature to restrict or prohibit abortion.
The Kansas Constitution does not currently mention abortion. But in April 2019, the Kansas Supreme Court found that the state’s constitution protects abortion as a “fundamental right” of “personal autonomy” inherent in the constitution’s declaration that “life, liberty, and the pursuit of happiness” are “inalienable natural rights.” As abortion is, according to the court, a fundamental right, any laws that seek to restrict it are subject to “strict scrutiny” and are “presumed unconstitutional.”
The case, Hodes & Nauser v. Schmidt, which was brought by a father-and-daughter team of doctors who perform abortions, challenged a state ban on dilation-and-extraction abortions, which some call dismemberment abortions. Pro-life advocates say the court decision overturning the law either nullified or at least undermined 23 statutes restricting abortion that the Kansas Legislature has passed since 1997.
While Kansas is a right-leaning state that usually (though not always) votes Republican, the state’s highest court is generally left of center, in part because of the outsize role the state’s board of bar overseers plays in nominating justices to the court. Lawyers elect five of the nine members of the nominating commission that presents to the governor three finalists for each state supreme court opening.
In addition, three of the five most recent governors of the state have been supporters of legal abortion, including its current Democratic Gov. Laura Kelly.
The court’s decision made Kansas what some call a haven for abortion in the generally pro-life heartland — particularly when the governors of Texas and Oklahoma briefly banned abortions as unnecessary elective surgeries during the height of the coronavirus restrictions in the spring of 2020. If voters approve the amendment, it will flip the court’s decision and allow pro-life statutes to take effect.
“This vote is critical for the pro-life movement in Kansas, critical for the protection of women and preborn babies in Kansas,” said Danielle Underwood, director of communications of Kansans for Life. “We know that the abortion industry wants two things for sure: They want to keep Kansas a sanctuary state for abortion. And they want to prevent any restrictions on abortion. And that’s frightening for the women and babies of Kansas.”
Weber said three pro-life organizations in the state — the Kansas Catholic Conference, Kansans for Life, and Kansas Family Voice — have made common cause over the proposed constitutional amendment. He also said he has gotten support from the state council of the Knights of Columbus.
Weber expects pro-lifers will get outspent at least 3 to 1, which means opponents of the amendment will likely dominate the airwaves in the weeks leading up to the vote. Getting the word out to Catholic and evangelical Protestant churches is essential, he said.
“Our most recent polling indicates that while Kansas is pro-life, there’s a big segment of the voting population that’s unsure and unclear about the amendment,” Weber said. “That’s why we need to get out there and work harder than everyone else, to explain what’s going on and why this is important.”
Constitutional amendments making it clear that the state constitution does not guarantee a right to abortion have already passed in Arkansas (1988), Tennessee (2014), West Virginia (2018), and Louisiana (2020).
In November 2022, a similar state constitutional amendment is set to go before voters in Kentucky.
“We have laws that prohibit abortion after 20 weeks in all but the most limited circumstances in Kentucky. We have excellent informed-consent and ultrasound requirements. Making sure that the state constitution is not used to strike those down is our No. 1 priority at the moment,” said Jason Hall, executive director of the Catholic Conference of Kentucky.
Other states also have generally pro-life legislatures and either pro-legal-abortion or questionable state courts. Oklahoma, for instance, has a majority of solidly pro-life legislators and electorate. But the state’s courts are less reliable on that subject.
Three finalists for each opening on the Oklahoma Supreme Court are selected by a 15-member nominating commission, six of whom are elected by lawyers in the state.
Pro-lifers are interested in bringing measures before the state’s voters to jettison the judicial nominating commission and replace it with a federal-style system, in which the chief executive nominates and another branch of government confirms. They also want to see a pro-life amendment added to the state constitution.
“Kansas will be a good test for us. It’s going to be a good leading indicator for what we think is possible,” said Brett Farley, executive director of the Catholic Conference of Oklahoma, which represents the Catholic bishops of the state.
‘A Top Priority’
In April 2017 the Iowa Legislature passed bills requiring a 72-hour waiting period to get an abortion and banning abortion after 20 weeks. The Iowa Supreme Court in June 2018 found on a 5-2 vote that a state right to abortion, though not mentioned in the Iowa Constitution, is “implicit in the concept of ordered liberty” and is therefore a “fundamental right.”
Pro-lifers in Iowa are in the middle of trying to get a statewide referendum on a state constitutional amendment that would flip the state court ruling. The Iowa Legislature approved the amendment in May 2019; if it does so again in 2023 or 2024, then the amendment would go to the voters in November 2024.
Without it, pro-life statutes in Iowa are all but useless.
“So the problem is, even if Roe v. Wade goes down, at the state level we still have a right to abortion here that makes it very difficult to even regulate abortion,” said Tom Chapman, executive director of the Iowa Catholic Conference. “So this is really a top priority for us.”