First Post-Dobbs Vote Tests Kansas Abortion Foes’ Strategy

Voters in Kansas will be the first in the country to get a say over the future of abortion rights following the US Supreme Court’s decision to hand regulation to the states.

Erasing the right to abortion from the state Constitution is on the ballot in the Aug. 2 primary—timing that forced campaigners to scramble to inform Kansans unaffiliated with either major political party that there’s a reason for them to vote.

Nearly a third of registered Kansans are unaffiliated, so their turnout levels can make a difference in whether the Legislature’s later able to ban abortion.

The initiative has attracted the attention of donors and activists across the country, some of whom will apply the lessons learned in Kansas to campaigns in four other states that will consider abortion referenda in the November general election.

“All eyes are on Kansas,” said Addia Wuchner, executive director of Kentucky Right to Life and leader of Yes for Life Kentucky, advocating a similar anti-abortion ballot measure. “Pro-life Kentuckians are watching Kansas and looking at the amount of work that they’re doing, their messaging, and also the amount of money that is coming in.”

A “yes” vote on the proposed proposed amendment would overrule a 2019 Kansas Supreme Court decision that found the state Constitution grants abortion rights.

That would open the door for Kansas to change laws that currently permit abortions through the first 22 weeks of pregnancy.

If the amendment fails in deep-red Kansas, that would show “it will be difficult elsewhere to flip states into an absolute ban on abortion,” said Barbra Bollier (D), a physician and party-switching former state lawmaker who’s been working against the proposed amendment.

Either outcome will energize the fall campaigns, said Wurchner.

“A positive outcome would incentivize us to work; a negative outcome would incentivize us even more,” she said. “The takeaway from Kansas will be, ‘Wake up, Kentucky. We have a few more months to get this done right.’”

Renewed Effort

Long before the U.S. Supreme Court declared in Dobbs v. Jackson Women’s Health Organization that there’s no federal constitutional right to abortion, Kansas lawmakers were working to change their state’s Constitution.

In 2020, moderate Republicans blocked a proposed ballot measure because they wanted the constitutional change to be considered in the higher-turnout November general election, University of Kansas Political Science Professor Patrick Miller said. Enough moderates subsequently lost in their primaries to let that strategy succeed on the second try.

“There’s 20 years of polling in Kansas showing it’s a pro-choice state where the typical Kansan favors a right to abortion but with limitations,” he said. “But the legislature has stacked this to be in a low-turnout election that disadvantages Democrats. It’s basic math.”

Behind that math:

• Kansans as a whole vote about 60% of the time for GOP candidates;
• Registered Republicans outnumber registered Democrats 851,882 to 495,574, according to state data; and
• Republicans routinely have about a 2-to-1 turnout advantage in primaries, Miller said.

Registration is trending up for unaffiliated voters, who number just over 560,000, but “your typical unaffiliated voter in Kansas is not used to voting in August because they have nothing to vote for,” he said.

‘Abortion Haven’

In the closing weeks of the campaign both sides are pouring money into the airwaves.

Kansans For Constitutional Freedom, an abortion rights group, put roughly $6.3 million into TV ads, including ones showing a doctor saying the amendment could endanger women and another in which a mother says an abortion saved her life, according to data compiled by AdImpact.

Value Them Both Coalition and other anti-abortion groups have spent about $6.2 million on TV, including ads describing fetal dismemberment and a spot saying, “Kansas is an abortion haven, just like California.” Value Them Both Coalition officials didn’t respond to requests for comment.

The “no” campaign received the bulk of its donations—more than $3.8 million—from abortion rights groups, such as the Sixteen Thirty Fund, Planned Parenthood, the North Fund, and the American Civil Liberties Union, according to the campaign finance disclosures filed with the state.

Catholic churches in Kansas provided more than $2 million of the “yes” campaign’s nearly $4.7 million in total contributions.

The stakes are high “because many of the states near to Kansas either have already or will soon restrict abortions,” said Peter Breen, vice president and senior counsel with the Thomas More Society, which supports anti-abortion litigation.

Of the 7,000 abortions performed in Kansas in 2019, about half were for out-of-state residents, according to the most recent data from the US Centers for Disease Control and Prevention.

Kansans For Constitutional Freedom spokeswoman Ashley All said the group has been preparing for the August vote for 18 months.

When a leaked draft opinion revealed in May that the US Supreme Court likely planned to overrule Roe v. Wade, and then when the high court issued its decision in June, “we were able to capitalize on the timing and energy that the ruling brought,” she said.

After next week, the losing side will have to regroup.

That would be relatively easy for abortion opponents, according to Breen. With Republican supermajorities in both chambers of the state Legislature, lawmakers could put another measure before the people in a future election, he said.

If the abortion-rights side loses, their only path would be changing the makeup of the legislature. Kansas is among the states with no mechanism for a citizen-initiated ballot question.

To contact the reporter on this story: Alex Ebert in Madison, Wisconsin at aebert@bloomberglaw.com

To contact the editors responsible for this story: Tina May at tmay@bloomberglaw.com; Katherine Rizzo at krizzo@bgov.com