Kansas Abortion Battle Shifts to November Elections, Legislature

The landmark vote Tuesday preserving state abortion rights in Kansas isn’t likely to settle the issue there, especially if Republicans can maintain or build upon their super majority in the state legislature this November.

The vote—first on an abortion rights ballot measure since the US Supreme Court overturned Roe v. Wade in June —leaves in place a 2019 state high court decision that said the Kansas Constitution protects the right to an abortion.

But the legislature can take other steps to regulate or restrict abortion services. Since 2020, Kansas lawmakers have enacted laws or resolutions touching on abortion 11 times, according to data compiled by Bloomberg Government.

The Value Them Both Coalition, which led the push for the ballot measure, called the loss a temporary setback. “Our dedicated fight to value women and babies is far from over,” it said in a statement.

Kansas House Democratic Leader Tom Sawyer also said the battle’s not over.

“We must break the supermajority in November to sustain this win, or else this amendment will have the votes to go on the ballot again and again until it finally passes,” Sawyer said in a statement.

(Photographer: Kyle Rivas/Getty Images)

A poll worker helps a voter cast at the Merriam Christian Church polling station, Aug. 2, 2022.

Republicans currently have enough votes in the state House and Senate to override a veto by Democratic Gov. Laura Kelly. For Democrats to thwart that, Kelly must win re-election in the red state and Democrats would have to flip enough seats to puncture the GOP super-majority in either chamber.

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Kansas’ existing constitutional right to abortion relies upon a ruling from the liberal-leaning state Supreme Court, whose justices are appointed by the governor. Six of the seven justices are up for retention votes in November. No Kansas justice has ever lost a retention vote but if the GOP’s anti-abortion gubernatorial nominee, Derek Schmidt, wins against Kelly, he could get the chance to replace several justices.

Just after midnight, when results showed roughly 60% of voters had rejected the constitutional change, Renee Erickson, one of the state Senate’s top Republicans, posted on Facebook a meme of a lion in the wild.

“It’s no longer our job to wake the sheep,” said the text. “It’s time to wake up the other lions.”

‘We Will Be Back’

The measures the Kansas legislature passed since 2019 followed decades of prior regulation culminating in roughly 10 broad restrictions on abortion in the state, according to the Guttmacher Institute, an abortion rights advocate.

Among other regulations, abortions in Kansas are generally barred after 22 weeks; abortion medication can’t be provided via telemedicine, and patients seeking an abortion must receive state-directed counseling discouraging an abortion and then wait 24 hours before having a procedure.

Still, Kansas has long been a destination for patients coming from places with more restrictive laws. In 2019, nearly half of all those who received abortions in the state were out-of-state residents, according to the US Centers for Disease Control and Prevention.

In the weeks since the US Supreme Court decision, nearby states such as Texas, Missouri and Arkansas have implemented total bans, driving up wait times in Kansas as more patients seek care there.

Since the 1970s, anti-abortion legislators nationwide have passed hundreds of laws to chip away at the availability of abortion without violating Roe’s protection of a right to an abortion through roughly the first trimester of pregnancy. That “incremental” regulation strategy is still available to anti-abortion legislators in Kansas, and they could take a cue from other states.

Some have recently enacted “bounty” provisions—first developed and enacted in Texas—that let citizens sue abortion providers for alleged violations of abortion regulations. A measure like that can chill abortion access but may not be seen as infringing upon the right to abortion care.

After Tuesday’s outcome, opponents pledged to increase their efforts.

“As our state becomes an abortion destination, it will be even more important for Kansans to support our pregnancy resource centers, post-abortive ministries, and other organizations that provide supportive care to women facing unexpected pregnancies,” The Value Them Both Coalition said. “We will be back.”

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

To contact the editors responsible for this story: John Martin at jmartin@bloombergindustry.com; Katherine Rizzo at krizzo@bgov.com