Kansas conservatives say new scheme to ban abortion somehow protects women

Conservatives in the Kansas Legislature really want to see abortion banned in their state. On the anniversary of the landmark decision in Roe v. Wade, they took a giant step toward making that happen. 

The Kansas House of Representatives overwhelmingly voted to place a measure before the voters on the 2022 primary ballot. They’ve been racing to do this because they’re afraid that future COVID-19 restrictions might restrict how much the Legislature can meet. 

The measure being proposed is similar to one that passed in Tennessee in 2014. If it passes, the Kansas constitution would be amended to say there is no constitutional right to abortion and that the ability to regulate abortion would only be through the legislature. It’s a reaction to a 2019 Kansas Supreme Court decision that held there is a constitutional right to abortion under the state constitution.

Functionally, this measure could decimate abortion access in Kansas, as conservatives in that state now have supermajorities in both the state House and Senate. It would strip Kansas courts of the right to address the constitutionality of anti-abortion measures under the state constitution and give the GOP leeway to pass restrictive laws that can’t be challenged.

Anti-abortion conservative legislators say the move is appropriate because so many Kansans cast their ballots for Republicans in the 2020 election, somehow signaling they wanted more direct voter input about abortion. That stance is undermined by the fact those same Republicans are now making a deliberate move to avoid putting the proposed amendment before as many voters as possible. 

The primary electorate in Kansas skews more conservative — and is much smaller — than the general electorate. There’s likely a better chance the amendment will pass if it appears on the primary ballot than on the general. 

As Tom Sawyer, a Democrat and the House Minority Leader, put it, “Putting this constitutional amendment on the August ballot will absolutely deny the rights of all Kansans to voice their opinion” about the issue. 

Along with what seems like a bad-faith legislative attempt to avoid a genuinely statewide referendum on whether to pass such a ban, anti-abortion activists are less than honest about the measure’s effects. Rather than admit they’re proposing an action that undermines protections for abortion by removing or drastically limiting judicial review, groups are framing it as “wanting to preserve safeguards for women.” 

It isn’t clear what additional “safeguards” a measure like this provides or that Kansas needs. Right now, Kansas already makes it quite challenging to obtain an abortion. A total of 98%  of the counties in the state don’t have a clinic that performs abortions. There’s mandatory counseling that the Guttmacher Institute, which researches reproductive health policy, describes as “designed to discourage [people] from having an abortion.” There’s a 24-hour waiting period. There’s mandatory parental notification for minors and mandatory ultrasounds for everyone. 

Another anti-abortion advocate, Brittany Jones of the Family Policy Alliance of Kansas, said the proposed amendment “is not a ban. All it does is allow the legislature to do what it has always done.” It does indeed let the legislature do what it has always done, which is to pass laws. However, it then robs the state-level judicial branch of the ability to do its job: review those laws. 

After Tennessee voters agreed to a similar measure, the Legislature in that state passed a six-week abortion ban. Now, there’s no way to challenge that in Tennessee state court, though a federal judge did block the measure as the result of a federal lawsuit. If this amendment passes in Kansas, abortion access there becomes just as fragile.