Abortion Faces Early Electoral Test in Kansas Primary

Danielle Underwood was sidestepping the question.

Underwood, director of communications for Kansans for Life, was a guest on “Up to Date,” a morning talk show on KCUR, the public radio station in Kansas City, Missouri.

The topic was an upcoming vote in neighboring Kansas on the “Value Them Both Amendment,” which, if passed, will strip reproductive rights from the state’s constitution and turn decisions about the legality of abortion over to the Legislature.

Underwood tried to cast the measure as a modest proposal. She was adamant that a “yes” vote would do no more than allow state lawmakers to enact “reasonable” regulations to ensure the health and safety of pregnant people seeking care. “We want to make sure that we’re able to have those kinds of protections for women in our state,” she said.

Steve Kraske, the show’s host, seemed skeptical. “Help me understand this though,” he began. “If the amendment in August passes and lawmakers once again have the ability to regulate abortion in the state of Kansas, wouldn’t the likely outcome going forward be that lawmakers would vote to ban abortion outright?”

“You know that Kansans are very commonsense people,” Underwood replied. “We believe in reasonable limitations on the abortion industry.”

The program aired just days after the U.S. Supreme Court issued its ruling in Dobbs v. Jackson Women’s Health Organization, which demolished Roe v. Wade, doing away with nearly 50 years of constitutional protection for abortion and giving state politicians the green light to impose their own views of reproductive autonomy. Following the ruling, Missouri was first out of the gate, banning abortion statewide within the hour. A number of states quickly followed suit; to date, 13 states have banned abortion. Roughly a dozen more are likely to do so, impacting tens of millions of people of reproductive age.

Meanwhile, in Kansas, abortion remains legal thanks to a 2019 Kansas Supreme Court ruling that concluded the state’s constitution includes the right to bodily autonomy. The decision has made Kansas a regional outlier and a key access point for people seeking abortion care in the South and Midwest.

Anti-abortion lawmakers bristled at the ruling and passed a resolution last year asking voters to amend the constitution to make clear that the promise of “equal and inalienable natural rights” in Kansas did not include abortion. The question will appear on the state’s August 2 primary ballot — making the Kansas election the nation’s first statewide post-Roe referendum on abortion rights. Advocates on both sides have been pushing hard to engage voters in what would otherwise be a mostly sleepy midterm primary. But whether it will be a true test of where voters stand remains an open question, due to widespread misinformation about the impact the amendment would have.

Advocates for reproductive autonomy — including Kansans for Constitutional Freedom and Vote No Kansas — say the notion that the amendment is about anything less than banning abortion is smoke and mirrors. “It’s a lie and it’s misleading and it’s false,” said Dr. Ashley Bloom, a family practice physician in Lawrence who has been supporting the “vote no” effort. Meanwhile, many in the “vote yes” camp insist, rather impossibly, that banning abortion is not what the amendment is about. Underwood told Kraske that it was simply about restoring “our state constitution and democracy.”

“But just to be clear, does a vote ‘yes’ for this amendment ultimately mean that abortion will be banned in the state of Kansas?” Kraske tried again. “Is that inevitable if that amendment passes?”

“There is no inevitable in the democratic process,” Underwood replied.

A Calculated Move

The amendment on the ballot in August has its roots in a bill passed by the Kansas Legislature in 2015. That year, the state became the first to enact a ban on the safest and most common method for ending pregnancy in the second trimester: what’s known as dilation and evacuation, or D&E.

Abortions later in pregnancy make up a small portion of the total number performed each year; roughly 6 percent take place after 14 weeks. But the procedure came under fire from anti-abortion activists and lawmakers who dubbed it “dismemberment abortion” (a term with no basis in medicine) because it causes disarticulation when the fetus hits the cervix.

Kansas’s D&E law was a de facto ban on all abortions later in pregnancy, prompting two doctors — a father-daughter team in Overland Park — to sue. The measure was a violation of federal constitutional law, at least at the time, and federal courts would go on to block copycat versions as impermissible bans on pre-viability abortion. But the Kansas doctors did not raise their claims in federal court. Instead, they sued in state court, arguing that the Kansas Constitution protected reproductive rights. And they were successful, both in the district court and court of appeals, which concluded in 2016 that the state’s Bill of Rights included the right to abortion. The state vowed to appeal. “The court’s failure to protect the basic human rights and dignity of the unborn is counter to Kansans’ sense of justice,” then-Gov. Sam Brownback said.

In 2019, the Kansas Supreme Court sided with its lower-court colleagues in a 6-1 ruling. The court undertook an extensive historical and textual analysis of the state’s founding documents — the type of approach that the U.S. Supreme Court supermajority allegedly favors — to determine that the Kansas Constitution granted broader and more explicit individual rights than its federal counterpart. Specifically, the court grounded the right to abortion in the Kansas Bill of Rights’ Section 1 guarantee that “all men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”

“Section 1’s declaration of natural rights, which specifically includes the rights to liberty and the pursuit of happiness, protects the core right of personal autonomy — which includes the ability to control one’s own body, to assert bodily integrity, and to exercise self-determination,” the court wrote. “This right allows Kansans to make their own decisions regarding their bodies, their health, their family formation, and their family life. Pregnant women, like men, possess these rights.”

The court determined that any restriction on the right to abortion should be subject to strict scrutiny — the most stringent form of judicial review, which requires an infringement to serve some “compelling” government interest and be “narrowly tailored” to achieve it. “Imposing a lower standard than strict scrutiny … risks allowing the state to then intrude into all decisions about childbearing, our families, and our medical decision-making,” the court wrote. “It cheapens the rights at stake.”

To say that many in the Kansas Legislature were displeased would be an understatement. When the Legislature gaveled back into session in January 2020, lawmakers fast-tracked a resolution to get a proposed amendment on the ballot, but their effort failed. After the November election saw the state’s Legislature tip further to the right, lawmakers passed the resolution in 2021 and, despite vocal opposition, put it on the August 2 primary ballot instead of the ballot for the November general election.

Putting the question on the primary ballot was a calculated move designed to benefit from the generally smaller and more partisan field of voters. “They want to put it out when the lowest amount of people vote,” Democratic state Rep. Stephanie Clayton told KCUR. “The rights of Kansans are not subject to a vote of the people.”

In 2020, just 34 percent of registered voters in Kansas cast a ballot in the primary while nearly 71 percent voted in the general election. The large discrepancy in turnout has been steady over the last five election cycles, according to statistics from the Office of the Kansas Secretary of State.

The move is also significant because independents in Kansas are the second-largest group of voters in the state, behind registered Republicans and ahead of Democrats (Libertarians make up the smallest portion of the state’s registered voters). Independent voters do not choose candidates in primary elections, raising concerns that they may not come out to vote on the amendment, even though unaffiliated voters are always eligible to vote on statewide matters. That’s one of the reasons that Melinda Lavon, a certified professional midwife who started the Vote No Kansas political action committee, has dropped the word primary when talking about the upcoming vote. “Unaffiliated voters, in general, are not used to voting twice a year,” she said. “I avoid calling it a primary; we just call it a statewide election that all registered voters can vote in.”

Don’t Be Fooled

Until the 1990s, Kansas had very few restrictions on abortion. That began to change after the state was targeted by anti-abortion zealots with Operation Rescue, who descended on Wichita in 1991 for a series of increasingly threatening protests dubbed the “Summer of Mercy.” The most high-profile target of the campaign was Dr. George Tiller, a renowned doctor who provided abortion care later in pregnancy. In 2009, Tiller was assassinated while at church by an unhinged anti-abortion hard-liner.

In the years following the Summer of Mercy campaign, lawmakers in Kansas passed a host of abortion restrictions of dubious necessity, including a 24-hour waiting period, a mandatory ultrasound law, a parental consent law, a ban on public and private insurance coverage for abortion, a requirement that only physicians provide care, a ban on telehealth for medication abortion, and a ban on all abortion after 22 weeks.

Those restrictions remain in place despite the 2019 Kansas Supreme Court ruling. Nevertheless, supporters of the constitutional amendment, like Underwood and the Catholic church, have stuck with the talking point that the purpose of the amendment is to ensure that abortion can be properly regulated. During her appearance on KCUR, Underwood leaned in hard: “If you’re in favor of unlimited abortion and you’re fine with abortion facilities with no inspection, sanitation, and safety standards,” she said, “then you would want to vote ‘no.’”

Underwood and Kansans for Life did not respond to a request for comment.

Catholic church leaders have struck a similar chord. In a video statement, the Bishop of Wichita, Carl A. Kemme, came close to acknowledging that passing the amendment would lead to a ban on abortion. “The amendment will save many unborn children,” he said, before reverting to the health-and-safety mantra. “Without Value Them Both, the abortion industry in Kansas will be able to operate with virtually no restrictions or regulations,” he added. “The abortion industry is trying to buy this election with confusion and outright lies. Don’t be fooled.”

The Catholic church is bankrolling much of the “vote yes” campaign; the Kansas City, Kansas, archdiocese alone has pumped nearly $3 million into the effort; Kemme’s diocese has contributed more than $800,000. Together, they account for more than half the “vote yes” funds contributed to date.

The “vote no” crowd only recently pulled ahead after being out-fundraised more than 2-to-1. More than $13 million total has been donated to the two campaigns.

Contrary to the claims of Underwood and Kemme, the state’s four abortion clinics are licensed, regulated, and inspected by the health department. Proponents of the amendment do not acknowledge the myriad restrictions on abortion that have been enacted in Kansas, instead focusing on a court decision from 2021, which struck down a suite of restrictions passed a decade earlier. Those restrictions — which included extra inspections and increased staffing requirements not imposed on other medical providers, along with a measure that would make patient records less secure — were found to run afoul of state constitutional protections.

“Restrictions that merely delay access to abortion impair a fundamental right,” Shawnee County District Judge Mary Christopher concluded. “As a result, it is not difficult for this court to conclude the challenged laws infringe on a woman’s right to access legal abortion services.”

Christopher ruled that the state had failed to show that the regulations were needed. After all, they had been blocked from taking effect for a decade, and there was “no evidence of an event impacting the health or safety of a person seeking abortion care during the 10-year pendency of this action.”

Get Out the Vote

Since the May leak of the Supreme Court’s draft decision in Dobbs, Bloom, the doctor in Lawrence, has seen her patients grow increasingly worried: What would losing reproductive rights mean for their future and the future of their families? “My patients are terrified,” she said. “They’re concerned about the implications of this intrusion of the government into personal medical matters and personal decisions regarding health care.”

She decided to lend her voice to the “vote no” campaign. “I feel like that’s really important, to have actual physicians speaking about medical decisions rather than politicians,” she said. She’s been canvassing voters and trying to cut through the confusion around the amendment, starting with its name, “Value Them Both,” which she thinks is deceiving. “They make it look like … if you vote ‘no’ on this, you don’t value babies. And that’s not what this is about,” she said. “I do value babies — and I value healthy families.”

She’s also been trying to set the record straight on what is in store if the amendment passes, which she believes is nothing short of a total ban on abortion. Abortion is already the country’s most heavily regulated medical procedure, she said, and the idea that voting yes would simply free up politicians to regulate its practice is nonsense. “If it walks like a duck and quacks like a duck — and I’ve seen it act like a duck — I’m going to call it a duck.”

Lawmakers have repeatedly tacked abortion restrictions onto as many bills as they can, and have proposed bans that eschew exceptions for a person’s health, for rape or incest, “or for children who have had their bodily autonomy violated,” she pointed out. While debating passage of the amendment resolution in early 2021, Kansas lawmakers in both the House and Senate roundly rejected modifications that would recognize exemptions for rape, incest, and the life of the pregnant person. They also rejected an effort to put the measure on the November general ballot.

The Value Them Both Coalition’s repeated assurances that the amendment is about regulation were recently undercut by one of the coalition’s own members, according to audio of a meeting with Republicans in Reno County, just northwest of Wichita, that was obtained by the Kansas Reflector. In the recording, Lori Chrisman, who described herself as an 18-county regional director for the Value Them Both Coalition, told the crowd that a total ban on abortion would be teed up and ready to go once the amendment passed. Republican state Sen. Mark Steffen, who was also at the meeting, followed up, claiming the Kansas Supreme Court had “hijacked the abortion issue” and the Legislature needed to take back control. His “goal,” he said, was to define “life starting at conception.”

A spokesperson for the coalition told the Reflector that Chrisman was “no longer with the organization.”

Back in Lawrence, Lavon, the midwife, has been working hard to get out the “no” vote. She has trained canvassers and gathered with groups of volunteers to send out handwritten postcards to voters. She’s been encouraged by the diversity of voices coming together to defeat the amendment: Democratic Socialists, Catholic nuns, and Libertarians, just to name a few. As a Catholic herself, Lavon is frustrated by the church’s enormous spending on an effort to strip individuals of basic human rights. She thinks that money would be better spent on feeding and housing people or ensuring health care for everyone, especially the most vulnerable. “It’s sad to see so many church resources go into this when we should be serving our communities and taking care of people.”

At the same time, she credits hard-liners within the church and the Republican Party for bringing together the diverse “vote no” coalition. “The Republicans have united an awful lot of people that usually do not think the same way or support the same plan for an election.”