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When the U.S. Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization on June 24, the court not only repealed federal constitutional protections for abortion by overturning Roe v. Wade and Planned Parenthood v. Casey, it shifted the battle over abortion rights to the states.
Kansas is the first battleground. Voters here go to the polls Aug. 2 to determine whether the Kansas Constitution should preserve a right to abortion upheld by a 2019 Kansas Supreme Court ruling.
Kansas is the first state in the country since the overturning of Roe to have abortion rights on the ballot. The state Legislature voted to put the amendment before voters prior to the recent U.S. Supreme Court ruling. The move was a response to a 2019 ruling by the Kansas Supreme Court that said the Kansas state constitution protects abortion access up to 22 weeks.
The outcome of Tuesday’s vote will determine whether Kansas remains a safe haven for abortion – and a possible destination for women from neighboring states.
States including Missouri and Oklahoma had so-called “trigger laws” on the books, which immediately took effect with the recent U.S. Supreme Court ruling, banning nearly all abortions overnight. Anti-abortion lawmakers in Kansas have drafted similar legislation they plan to take up when the Kansas Legislature returns in January 2023.
Proponents of the “Value Them Both” amendment say it is needed to prevent Kansas from liberalizing or removing existing restrictions on abortion. Opponents say if passed, it will clear the way for greater restrictions including an outright abortion ban in Kansas.
With mere days left before the high-stakes election, voters who have yet to cast their ballot may have questions left unanswered.
What does the abortion amendment do?
The abortion amendment would insert language into the state constitution to say there is no right to an abortion in the constitution.
A vote “yes” would add language that would effectively remove the right to an abortion in the Kansas Constitution. This would clear the way for the Kansas Legislature to regulate abortion beyond what the state Supreme Court said is permissible under the law.
A vote “no” would be a vote against adding the language. Abortion would remain a protected right in the state constitution, and abortion regulations in Kansas would be subject to the high level of legal scrutiny they are currently.
The amendment would add these two sentences to the constitution:
“§ 22. Regulation of abortion. 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. 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.”
Kansas law currently restricts abortion in a number of ways. The state government is banned from funding abortion or subsidizing insurance policies that could cover abortion. Kansas has enacted, and continues to enforce, many regulations on abortion.
Nothing in the amendment would automatically allow abortion in cases of rape, incest or to save the life of the mother, said Richard Levy, professor of constitutional law at the University of Kansas School of Law.
“If you read the language carefully, those are only circumstances that the Legislature may — and I emphasize may — take into account,” Levy said. “So although the Legislature could create those exceptions, the amendment does not require them.”
What happens if the abortion amendment passes?
Immediately, not much. The amendment itself does not ban abortion, but it does create the opportunity for the Kansas Legislature to do so.
“The most direct and immediate consequence would be that the cases that are currently pending in which regulations have been blocked by lower courts would likely be promptly dismissed,” Levy said. “Those laws would be allowed without any further intervention.”
One of those cases is the same lawsuit the Kansas Supreme Court’s decision stemmed from. The lawsuit challenged a ban on dilation and evacuation abortions, and while the state Supreme Court ruled on the constitutional right to abortion, it stopped short of deciding the constitutionality of the law.
Long-term, the Kansas Legislature would be able to pass laws that further restrict abortion; Levy said that is likely to happen.
“There’s a strong supermajority in both the House and the Senate that are strongly opposed to abortion, and I think it’s safe to assume that as soon as possible after the amendment is adopted, the legislature would adopt a very, very restrictive law that banned most abortions,” Levy said.
Last month, a state senator proclaimed his ambitions to pass laws saying that life starts at conception. A bill criminalizing abortion from conception, punishable at the same level as rape or murder, was introduced at the end of the 2022 legislative session. That bill could be resurrected in 2023.
What happens if the abortion amendment fails?
If the amendment fails, Kansas preserves women’s rights to legal abortion under existing restrictions. Any regulations that have been previously struck down by courts or enjoined will remain so, Levy said.
If the amendment fails, supporters could theoretically try to bring back the amendment again, starting the entire process over. But Levy said it’s not likely. “If it fails, that would be pretty stunning, and it might cause legislators to be hesitant before going back to the well again,” he said.
If the amendment fails, existing regulations will not fall like dominoes. Rather, the legal status quo will be maintained, and the regulations currently in place will remain in place, Levy said.
Among the regulations that are currently in place, have not been challenged since the 2019 ruling and would remain in place if the amendment fails: bans on taxpayer funding of abortions; gestational limits on abortion at 22 weeks; and parental consent for minors. All are regulations that proponents of the amendment say are needed.
What abortion regulations are currently in place in Kansas?
The 2019 Kansas Supreme Court decision created a high legal standard, but several abortion regulations are still on the books in the state. Here are abortion regulations in Kansas that are still in effect:
- A patient must wait 24 hours after receiving state-mandated information before obtaining an abortion;
- Abortions at 22 weeks gestation are banned with few exceptions;
- A patient must undergo an ultrasound and be offered the option to view the image;
- Sex-selective abortions are banned;
- Patients under age 18 must have permission from a parent, guardian or the court;
- Medication abortions cannot be provided through telemedicine (though a lawsuit challenging this law is currently working its way through the courts);
- Tax dollars cannot be used to pay for an abortion or abortion coverage;
- Private insurance cannot cover abortions unless an additional rider is purchased separately;
- Insurance plans purchased on a government exchange cannot cover abortion.
Why is there an abortion amendment on the ballot now?
Lawmakers drafted the abortion amendment to negate a 2019 Kansas Supreme Court decision that says the rights to bodily autonomy — including the decision on whether to continue a pregnancy — are protected by the state constitution. The court said that any laws that restrict those rights must pass a legal test known as strict scrutiny.
“Strict scrutiny requires that the law must serve a compelling governmental interest, and it has to be necessary and narrowly drawn to serve that interest,” Levy said. “That’s a pretty high bar, but some abortion regulations do survive it.”
In the context of abortion, strict scrutiny means any restrictions passed by the Legislature must be medically necessary and must not be overreaching.
If the strict scrutiny standard is removed by amending the constitution, Levy said, lawmakers could do just about anything they want to restrict abortion.
“It would allow the Legislature to adopt a total ban from the time of conception through childbirth with no exceptions,” Levy said. “That would mean under the Kansas Constitution, anything goes.”
The Supreme Court’s decision does not take away lawmakers’ ability to pass laws relating to abortion without the amendment, Levy said.
“The Legislature has always had, and continues to have, authority to regulate abortion just like it has authority to regulate health care generally,” Levy said. “However, that authority cannot be exercised in a way that violates constitutional rights.”
How did we get here? A timeline.
April 7, 2015: Then-Gov. Sam Brownback signed Senate Bill 95 into law. The law would have banned the dilation and evacuation abortion procedure, which is the most commonly used procedure for second-trimester abortions. It would have become effective on July 1, 2015.
June 1, 2015: Two Overland Park obstetrician-gynecologists who perform dilation and evacuation abortions filed a lawsuit challenging SB 95 and asked the court for a temporary injunction to stop the law from going into effect. In their lawsuit, the doctors said that banning the procedure, which they use in 95% of second-trimester abortions, would force them to use procedures that were riskier for their patients. The doctors said that the law violates their patients’ rights to medical privacy and bodily integrity imbued in the Kansas Constitution.
June 25, 2015: The state district court in Shawnee County granted the temporary injunction, preventing SB 95 from going into effect while litigation moved to forward to higher courts to answer the question of whether the Kansas Constitution includes the right to an abortion.
April 26, 2019: The Kansas Supreme Court ruled that Article I of the Kansas state constitution protects the rights of personal autonomy, bodily integrity and self-determination, which “can include whether to continue a pregnancy.” The court said that these rights are fundamental, but not absolute, so the state could regulate those rights, but only when the legal standard of strict scrutiny is met. Strict scrutiny requires that there must be a “compelling government interest” to regulate abortion, and the regulation must be “narrowly tailored to that interest.” The court remanded the case back to the state district court without ruling on the constitutionality of SB 95.
Oct. 2, 2019: The Kansas Legislature’s Special Committee on the Judiciary recommended that a constitutional amendment to reverse the state Supreme Court’s decision regarding a constitutional right to abortion be drafted and presented before voters. The Special Committee on State and Federal Affairs made a similar recommendation on Oct. 30, 2019.
Jan. 16, 2020: State Sen. Rick Wilborn, a Republican from McPherson, introduced SCR 1613, the first version of the abortion amendment, to the Senate Judiciary Committee. An identical House version, HCR 5019, was introduced the same day.
Feb. 7, 2020: SCR 1613 fell four votes shy of the two-thirds majority threshold required to pass the House, after getting the required votes in the Senate the week prior. The resolution effectively died for the 2020 legislative session.
Nov. 3, 2020: The 2020 general election, in which every seat in the Kansas Legislature was on the ballot. Eight lawmakers who voted against the amendment either did not seek reelection or lost their reelection bids and were replaced by lawmakers who later voted in support of the amendment.
Jan 12, 2021: Rep. John Barker, a Republican from Abilene, introduced HCR 5003, another version of the abortion amendment. Barker chairs both the House Committee on Federal and State Affairs that managed the amendment’s hearing process and the joint Special Committee on State and Federal Affairs, which first recommended drafting the abortion amendment in October 2019. The amendment includes language that would place it on the Aug. 2, 2022, ballot.
Jan. 22, 2021: HCR 5003 passed the House with the required two-thirds majority, with 86 representatives voting in favor of the amendment and 38 against.
Jan. 28, 2021: HCR 5003 passed the Senate with the required two-thirds majority, with 28 senators voting in favor and 11 voting against. The resolution was then sent to the secretary of state to be included in the Aug. 2, 2022 ballot.
May 3, 2022: Politico reported that, according to a draft opinion leaked to the press, the United States Supreme Court had voted to overrule Roe v. Wade, the landmark court case that established a right to privacy in the U.S. Constitution that prohibited the government from banning pre-viability abortions.
June 24, 2022: The U.S. Supreme Court struck down federal constitutional protection of abortion in its decision in Dobbs v. Jackson Women’s Health Organization, which overruled Roe and Casey. In the Dobbs decision, the court said that abortion laws should be left up to states. Trigger laws banning abortion took immediate effect in 13 states, including Missouri and Oklahoma.
Aug. 2, 2022: Election day. HCR 5003, which would amend the Kansas Constitution to say that abortion is not a protected right, will be on the ballot.
Jan. 9, 2023: The 2023 legislative session starts. If HCR 5003 passes in August, lawmakers will have broad reach unhindered by state court precedent to pass laws restricting abortion.