The first state-level vote on abortion after the overturn of Roe v. Wade was a loss for the pro-life movement in Kansas’ Tuesday primary. The result raises questions about how the Supreme Court’s June 24 decision might be a factor in the midterm elections and what it might mean for abortion-related ballot initiatives in other states. 

Kansans voted 59% to 41% to leave in place a 2019 state Supreme Court ruling that found a right to abortion in the state’s constitution. 

The “Value Them Both” Amendment would have removed that right to abortion, adding the following words to the Kansas Constitution: 

“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,” and “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.” 

The primary election had record-high turnout, with more than 900,000 votes cast on the ballot measure. 

President Joe Biden took the results as a reflection of national sentiment on the issue, releasing a statement Aug. 2 saying, “This vote makes clear what we know: The majority of Americans agree that women should have access to abortion and should have the right to make their own health care decisions.”

However, pro-lifers are not as convinced that the amendment’s failure in Kansas has national implications in November, citing unique circumstances leading up to the vote.

 

Combatting Misinformation

Mallory Carroll, spokeswoman for Susan B. Anthony Pro-Life America, which committed $1.3 million in funding to back the amendment, told the Register the result was “a huge disappointment for pro-life Kansans and pro-life Americans” and “a tough reminder that our battle in the political and policy arenas did not end with the Dobbs decision.”

But Carroll attributed the Kansas result largely to what she called a high level of misinformation and deceptive advertising from the pro-abortion side. 

Abortion advocates framed the amendment, she said, as “a vote to ban all abortions across the state of Kansas,” reflected by messaging and yard signs reading “Stop the ban” and “No exceptions for the life of the mother.” In reality, Carroll said, all the ballot initiative would have done is correct “a judicial overreach from a few years back when the state Supreme Court found an alleged right to abortion in the state constitution.”

Paul Linton, a Catholic attorney in Illinois and author of Abortion Under State Constitutions, agreed that abortion advocates’ mischaracterization of the amendment likely influenced its defeat.

“They were clearly implying, if not actually saying, that the amendment would prohibit abortion in Kansas, and the amendment would have done no such thing,” he told the Register. “It simply would have allowed the legislature to regulate and/or prohibit abortion as they may have deemed appropriate, but the amendment itself did not dictate any abortion policy.” 

But Linton raised another factor that may have negatively affected the Kansas ballot initiative: the fact that the vote followed so closely on the heels of Roe being overruled, which incentivized the abortion lobby to push back hard. 

Sam Brownback, who served as governor of Kansas from 2011 to 2018 and was formerly U.S. ambassador-at-large for international religious freedom from 2018 to 2021, told the Register that he thought the situation in Kansas was a difficult one and particular to the state. 

“This is the first of the abortion battles since the overturning of Roe, and there were a lot of unknowns, [and] people voted against the unknowns,” he said. “What you were doing in this vote was voting to take the issue from the Kansas Supreme Court and give it to the legislature. People didn’t know what that meant. What limitations is the legislature going to put on abortion? With that lack of clarity, people just voted for the status quo.”

Confusion over the amendment’s wording could have played a part in its defeat, as well. ABC News reported that voters waiting in line “expressed confusion about the amendment, many saying that while they eventually understood what they were voting on, they had to make an extra effort to figure it out.”

Celia Maris, a Democrat who voted “No” on the amendment, told ABC she had to “read the wording multiple times, saying, ‘I think they need to explain it because not everybody can understand the terminology.’” Christine Matthews, who voted “Yes” on it, also told ABC she had heard confusion over what the amendment did. She said, “I do think that some people think that if you vote ‘No,’ then you will totally go back to having a national legal abortion situation. I also think that people think if you vote ‘Yes,’ that that is just going to completely wipe out abortion. I know neither of those were true.”

 

 Other State Ballot Initiatives

Both Brownback and Carroll noted that the post-Roe strategy is very different from the battle that has taken place over the last 49 years. 

“Ballot initiatives have not been the traditional means by which the pro-life movement has sought to enact protections for unborn children,” Carroll told the Register. “It has been at the legislative level, working with elected lawmakers.”

Carroll said the result in Kansas is “a clarion call to the movement to do better at ballot initiatives, especially since so many other states are considering them. And if the pro-abortion movement thinks that this is the way that they’re going to achieve their goals state by state, we have to be on guard.”

Brownback acknowledged that the new landscape requires a new way of presenting the case for life. 

“I think we’ve got to be very specific and clear about what it is we’re talking about and what we’re not talking about, so you don’t get this confusion and these unknown factors that get conjured up.”

Five states have abortion-related measures on their ballots in the November midterm elections. Kentucky is considering a measure that would add language to the state’s constitution stating that “nothing in this Constitution shall be construed to secure or protect a right to abortion or require the funding of abortion.” 

Montana is voting on a measure stating that “a born-alive infant, including an infant born in the course of an abortion, must be treated as a legal person under the laws of the state, with the same rights to medically appropriate and reasonable care and treatment.” 

In contrast, Vermont and California will be voting on measures to enshrine a right to abortion in their state constitutions. Michigan is also likely to have a similar ballot measure, although that has not yet been formally confirmed.

Linton said the result from Kansas is unlikely to affect the abortion-related ballot propositions in these five other states. 

“As far as Kentucky is concerned,” he said, “it’s certainly a much more conservative state than Kansas, plus the amendment’s going to be voted on in November, so there’s more time between the date of the Dobbs decision [that overturned Roe], kind of letting that sink in with people.”

He believes the issue is likely to be on the ballot in Michigan. Linton described the pro-abortion measure, currently titled the “Michigan Right to Reproductive Freedom Initiative,” as “a fairly radical proposition that would undermine a lot of commonsense regulations on abortions like parental consent, funding restrictions, late-term restrictions.” He said its radical nature could possibly lead to its defeat.  

 

Abortion in State Constitutions 

Carolyn McDonnell, staff counsel at Americans United for Life, told the Register that, recently, “in at least 11 states, abortionists have raised the argument that the state constitution protects abortion as a right.” With the Bluegrass State amendment, “Kentucky is trying to prevent that,” McDonnell said. “They’re trying to say that the state constitution does not obviously protect abortion.” 

Abortion providers have brought forth litigation arguing that abortion is protected in state constitutions in Idaho, Georgia, Kentucky, Michigan, North Dakota, Ohio, Oklahoma, South Carolina, Utah and Wyoming. 

McDonnell pointed to recent pro-life success in this area, including a case in Iowa in June, just ahead of the Dobbs ruling, where the state Supreme Court overruled “their previous decision, saying there is no fundamental right to abortion under the state constitution.”

She said that in the wake of Roe being overturned, Montana has raised a challenge to the supposed right to abortion in the state constitution, and “what they’re saying there is because Dobbs is gone, some of that legal reasoning that the state court had relied upon is now gone, as well.” 

Republican Montana Gov. Greg Gianforte wrote Tuesday in his motion that, in the wake of Dobbs, “the Court will need to re-assess, without Roe, the limits of its authority to interpret a constitutional right to include that which was expressly intended and believed to be excluded from the Bill of Rights, and instead reserved to the Legislature.”

 

Upcoming Midterms

Many have speculated that the results from Kansas also indicate that abortion politics will play a significant role in the Nov. 8 midterms, handing floundering Democrats a needed boost ahead of the elections. 

Ramesh Ponnuru, a conservative commentator who grew up in Kansas, wrote in National Review that “the referendum appears to have driven turnout in the state,” which suggests “a few potential advantages for pro-abortion Democrats this fall. They can do very well in places where a pro-life referendum is on the ballot, especially one that can be presented as effectively banning abortion without exceptions for pregnancies resulting from rape; and maybe also in some places where legislators are on the verge of enacting such bans (or can be presented as being on the verge of it).”

“Will they be as successful in turning out their vote in the many places where those conditions are not present?” he wondered. “Tuesday night’s result in Kansas will yield Democratic confidence about the answer to that question. It could turn out to be overconfidence.”

Brownback pointed out the high levels of out-of-state funding for the pro-abortion side in the Kansas race, saying that, in the midterms, “I don’t think they’ll be able to replicate that in all the places across the country.” He added that the race was in the wake of “this huge seismic shift, when Roe got overturned a month and a half ago,” a factor that may not loom as large in November, saying that “the timing of this was really difficult for the pro-life side.” 

Linton predicted a high turnout in the midterm elections in November “for a variety of reasons,” and “largely because of the state of the economy,” adding that “abortion may be one of [the key issues], as well.” However, he pointed to historical polling showing that the abortion issue tends to drive more turnout for pro-life voters. A 2020 Gallup poll found that 30% of those who identified as “pro-life” said they were single-issue voters compared to 19% of those who were “pro-choice.”

Looking ahead, Carroll said that there will be “more factors at play” in the midterms, but the situation in Kansas “really underscores the importance of pro-life candidates going on offense and talking about the pro-abortion Democrats’ nationwide agenda, which is their desire for abortion on demand, up until the moment of birth, paid for by taxpayers.” 

Pro-lifers, she said, need “to get the truth out there.”