The story so far: In a referendum on August 2, voters in the conservative state of Kansas in the U.S. decided to protect rights to abortion. This was the first electoral test in any state after the U.S. Supreme Court overturned Roe vs Wade in June, ending the constitutional right to abortion guaranteed by a 1973 judgment. The ‘Kansas No State Constitutional Right to Abortion and Legislative Power to Regulate Abortion Amendment’ was defeated, with almost 59% of voters saying no, according to projections, thus maintaining the legal precedent set by Hodes & Nauser vs Schmidt (2019) that the Kansas Bill of Rights provides a right to abortion.
The amendment, which was to be inserted in Section 22 of the Kansas Bill of Rights, proposed to change the constitution to provide that the state “does not require government funding of abortion and does not create or secure a right to abortion.” It would have allowed elected state representatives and state senators to “pass laws regarding abortion, including, but not limited to, laws that account for circumstance of pregnancy resulting from rape or incest, or circumstances of necessity to save the life of the mother.”
In her report for Politico, Alice Miranda Ollstein said the surprise win in one of the most conservative states in the country highlights the “gap between what a majority of voters want and what a number of Republican candidates and lawmakers are pushing — both in Kansas and in several other states sure to play a key role in the upcoming mid-term elections.” The former U.S. Secretary of State Mike Pompeo (Republican) had urged pro-life Kansans to get behind the amendment to ban abortion and vote ‘yes’. Democrat Senator Elizabeth Warren who had campaigned for the ‘Kansans for Constitutional Freedom’, opposing the amendment, tweeted that the “Supreme Court doesn’t get the last word in a democracy. We the people are fighting back. And it’s working.”
The amendment’s failure in the conservative state will boost Democrats’ hopes that the abortion rights issue will lead voters to the party in the November 8 elections. President Joe Biden said the Kansas 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.”
Appealing to Congress, Mr. Biden said it should “listen to the will of the American people and restore the protections of Roe as federal law.”
According to the Center for Reproductive Rights, at the time of the Roe overturning, high courts in 10 states — Alaska, Arizona, California, Florida, Kansas, Massachusetts, Minnesota, Montana, New Jersey, New Mexico — “recognised that their state constitutions protected abortion rights independently from and more strongly than the federal constitution.” These protections can be overturned only through referendums. The Kansas referendum win is important because things are difficult on the ground in a conservative state like Kansas, where there has been “continuing efforts to restrict abortion access”. A Center for Reproductive Rights report on state constitutions points out that there are only four medical abortion clinics in Kansas, and that 98% of Kansas counties have no clinics that provide abortions.
It allows pregnancies to be terminated up to 22 weeks with other restrictions, including a compulsory 24-hour waiting period and parental consent for children. The Kansas legislature is controlled by anti-abortion Republicans but the governor, Laura Kelly, is Democrat and will have to slug it out at the mid-terms against her Republican opponent and state attorney general Derek Schmidt.
Abortion is currently illegal in seven states including Oklahoma, Missouri, Louisiana, Mississippi, Alabama, South Dakota and Arkansas, and other states are working to enforce abortion bans like Kentucky. Calling the referendum verdict an “enormous victory” for the people of Kansas, Nancy Northup, president and CEO, Center for Reproductive Rights, said that the win would “protect the fundamental right to personal and bodily autonomy” of women.
In July, the House of Representatives voted to restore abortion rights nationwide. It also passed a second bill to prohibit punishment for a woman or child who decides to travel to another state to get an abortion. But the bills do not have a chance of becoming law as support is lacking in the 50-50 Senate. House Speaker Nancy Pelosi told AP: “We have to elect a couple more Democratic senators so that we can get around the filibuster …[and] can pass legislation that truly impacts a woman’s right to choose. There’s no halfway measure.”