By Celia Llopis-Jepsen
Lawmakers are fast-tracking a push to amend the state constitution and undo a Kansas Supreme Court ruling that said women have the right to abortion.
The goal, with voters’ approval in August, is to add a line to the state bill of rights saying abortion isn’t constitutionally protected — and that legislators can regulate abortions, including when a pregnancy results from rape or incest or threatens a woman’s life.
The proposal already is awaiting floor votes in both chambers, just over a week after the 2020 session began.
“It’s very important that we allow the citizens of Kansas a say in this,” House Speaker Ron Ryckman said.
The bill, he said, will be among the first to get a floor debate this session. House and Senate committees held a joint hearing Tuesday to speed the process, and the next day — the anniversary of Roe v. Wade — both passed the bill to their respective floors.
Critics are crying foul over Republicans’ move for a vote in August, which will see a competitive GOP primary for a U.S. Senate seat, rather than November, when the presidential election will draw far bigger crowds to the polls.
“They want to put it out when the lowest amount of people vote,” Democratic Rep. Stephanie Clayton said. “The rights of Kansans are not subject to a vote of the people.”
University of Kansas political scientist Patrick Miller said the August primary will see a “much smaller, much more skewed electorate” that could boost the amendment’s chances of passing.
That’s because middle-of-the-road voters tend to vote less in primaries, he said, and though polling on abortion isn’t extensive in Kansas, it suggests most residents have mixed feelings on the topic.
To be enshrined in the constitution, the proposal needs two-thirds majorities in the House and Senate, and more than half the ballots cast by the public.
Here’s what the amendment would say:
§ 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, in circumstances of pregnancy resulting from rape or incest, or when necessary to save the life of the mother.
In April, the Kansas Supreme Court concluded women have the right to terminate a pregnancy under the state constitution, which says everyone has “inalienable natural rights.” Those include having control over our bodies and decisions about having a family, the justices wrote.
Kansas’ abortion restrictions range from banning the procedure after 22 weeks of pregnancy for most women to blocking insurance companies from covering abortion unless a patient purchases a special policy rider.
Anti-abortion lawmakers and activists fear those restrictions, won over the course of years, will fall like dominoes if litigated under the April court ruling.
Passing the proposed amendment would prevent that from happening, said Chuck Weber, a lobbyist for the Kansas Catholic Conference, which represents the state’s four bishops and their dioceses.
“It’s very, very reasonable — almost innocuous,” Weber said of the amendment. “I use the word ‘innocuous’ and I realize that that probably doesn’t fly with some people, but really this just brings us back to what we were in Kansas prior to the ruling. So, it does not ban abortion.”
Rachel Sweet, a lobbyist for Planned Parenthood Great Plains Votes, argued that anti-abortion groups won’t stop at the amendment.
Currently, Kansas abortion restrictions often include exceptions to save a mother’s life, but generally not for rape or incest victims. Planned Parenthood argues the proposed Kansas amendment paves the way to make the procedure illegal in all circumstances.
“Kansans do not want politicians interfering in their personal medical decisions,” Sweet said. “If this (amendment) does get to the ballot, I’m confident that the voters of Kansas would reject this.”
A 2016 survey by Fort Hays State University found nearly half of Kansans were somewhere in the middle on abortion rights, saying it should be legal for most or at least some situations.
Two years later, a Fox News analysis found a similarly complex picture. Four in five Kansans supported some level of legal abortion access, and four in five wanted some level of restrictions. As in the 2016 survey, Kansans were slightly more likely to believe abortion should be legal in all or most cases than illegal in all or most cases.
This complex picture means the messaging and campaigning for and against the constitutional amendment — and how Kansans ultimately interpret its implications — will determine whether it passes.
Kansas has four abortion clinics, two in Overland Park and two in Wichita. About 7,000 people got abortions in Kansas in 2018, about half came from other states. Neighboring Missouri’s only abortion clinic is in St. Louis.
President Donald Trump has appointed two conservative-leaning justices to the U.S. Supreme Court. Abortion rights activists say that could lead to justices overturning critical decisions like Roe v. Wade, which legalized abortion nationwide in 1973.
Two decades later, in Planned Parenthood v. Casey, the high court changed the bar to an “undue burden” test, which was generally viewed as giving states more leeway for restrictions.
Last year’s Kansas Supreme Court ruling set a “strict scrutiny” standard for figuring out whether an anti-abortion law violates the right to control one’s own body and reproductive decisions. That means abortion restrictions are only constitutional when the state can show it has a compelling interest, and tailored a law to that end.
It’s difficult to say which laws on the books in Kansas today might fail that strict scrutiny standard, according to Richard Levy, a constitutional law professor at the University of Kansas.
“With respect to informed consent and waiting, I think those would be vulnerable,” he said, referring to laws that make women wait 24 hours for an abortion and mandate doctors give women information designed to discourage abortion. “Yet, it’s not 100% clear that the Kansas courts are supposed to follow the pre-Casey U.S. Supreme court precedents.”
Proponents of amending the Kansas Constitution have launched letter-writing campaigns and petitions. And dioceses have called on Catholics to appeal to the Virgin Mary.
John Holecek of McPherson is coordinating the Kansas Rosary Crusade to get as many Catholics as possible praying weekly for the amendment to pass.
“I don’t think it’s a slam dunk by any means,” Holecek said of the amendment’s chances, “although Kansas has a reputation of being pro-life.”
Celia Llopis-Jepsen reports on consumer health and education for the Kansas News Service. You can follow her on Twitter @celialj_LJ or email her at celia (at) kcur (dot) org.
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