REUTERS / Gabriella Borter
On June 24, the U.S. Supreme Court’s conservative majority overturned the constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization, saying they were sending the issue of abortion back to the voters. But voters don’t make their decisions in a vacuum, and we’re already seeing how the politics of abortion have changed in Kansas. On Aug. 2, Kansans will vote on a state constitutional amendment that would clarify that the state’s bill of rights does not protect Kansans’ right to an abortion. And even though the state leans Republican, new polling and fundraising numbers suggest it’s a close race.
The proposed amendment, as its supporters are quick to point out, wouldn’t ban abortion, but it would remove one of the biggest obstacles to making abortion illegal in Kansas. In 2019, the state Supreme Court ruled that the right to bodily autonomy in the state’s bill of rights includes the right to abortion — separate from any rights guaranteed (or not guaranteed) by the U.S. Constitution. So even if Kansas’s Democratic governor, Laura Kelly, loses in November, the state’s Republican-controlled legislature wouldn’t be able to pass much anti-abortion legislation at all. And Kansas would continue to be an island of abortion access as surrounding states ban abortion. If the amendment passes, on the other hand, the Kansas constitution would no longer protect abortion and more restrictions are likely, particularly if Republicans take back the governor’s mansion in the midterm elections.
The vote will be an early bellwether for how Americans are thinking about abortion in the lead-up to the midterms. According to the first publicly released poll of the campaign, conducted by co/efficient and shared exclusively with FiveThirtyEight, 47 percent of likely primary voters say they plan to vote for the amendment, while 43 percent say they plan to vote against it.
One quirk is that the proposed amendment is on the primary ballot, not the general election ballot, which means that voter turnout will almost certainly be lower. Normally, lower turnout would benefit the amendment’s supporters, who would likely be more motivated to vote since their side went to the trouble of getting this on the ballot in the first place. But the U.S. Supreme Court’s ruling on abortion appears to have scrambled that conventional wisdom. Most respondents (84 percent) in the co/efficient survey say the amendment has made them more likely to vote, and the poll finds that Democrats are more energized than Republicans by the issue: 94 percent of Democrats say the amendment has “increased the importance of voting in this upcoming election,” compared with 78 percent of Republicans.
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“The decision was a wakeup call for a lot of moderate Kansans who weren’t engaged on this issue because they thought there was federal protection for abortion care,” said Ashley All, a spokesperson for Kansans for Constitutional Freedom, the main organization opposing the amendment. According to All, the group went from having about 44 volunteers sign up per week to more than 500 volunteers per week after the Dobbs decision, and they’ve made more than 140,000 phone calls to Kansans since then as well.
Money is pouring into the campaign, too. All said the campaign raised almost $100,000 on the day of the decision alone — more than three times what it had raised in the previous three weeks. In total, Kansans for Constitutional Freedom has raised more than $6.5 million since the beginning of the year. By contrast, the coalition supporting the amendment — Value Them Both — has raised about $4.7 million. Kansans for Life, one of the main groups in the coalition, did not respond when we asked whether they’ve noticed more engagement among their supporters, but Emily Massey, a spokesperson for the pro-amendment campaign, told us their strategy hadn’t changed since the Dobbs decision.
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The competitiveness of this campaign may seem surprising given the state’s strongly Republican lean in partisan elections, but public opinion on abortion in Kansas is not absolute. In fact, this isn’t the first time the state has been at the center of the battle over abortion rights. In 1991, busloads of anti-abortion activists descended on Wichita for six weeks in what they dubbed the “Summer of Mercy.” They blocked the entrances to abortion clinics throughout the city to prevent patients from getting in, leading to more than 2,000 arrests. Nearly two decades later, a Wichita doctor named George Tiller who performed third-trimester abortions was murdered by an anti-abortion extremist while Tiller was working as an usher at church.
Today, because of the 2019 state Supreme Court decision, Kansas is one of the few Midwestern states where the Dobbs decision has essentially had no impact on the legality of abortion. “The court called [abortion] a fundamental right,” said Richard Levy, a professor of constitutional law at the University of Kansas, adding that the protection is even stronger than the federal constitutional right conferred by Roe v. Wade. As a result, abortion remains legal until 22 weeks of pregnancy — with some restrictions like a 24-hour waiting period, a mandatory ultrasound and parental consent for minors — even though two of the four states bordering Kansas have banned abortion and a third could soon follow suit.
Dr. Christina Bourne, the medical director of Trust Women, an abortion clinic that occupies the space where Tiller once worked, said the state is an increasingly crucial access point for women in the South and Midwest: “The day the Dobbs decision came down, people in Mississippi and Louisiana were literally calling us from the waiting rooms of abortion clinics there, saying their appointment had just been canceled and could we fit them in.”
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The future of abortion access in Kansas has been a big part of the debate over the constitutional amendment — and both supporters and opponents of abortion rights are trying to take advantage of the particular aspects of public opinion on their respective sides. For example, Kansans for Constitutional Freedom has argued that passing the amendment “could lead to a full ban of any abortion in Kansas, with no exceptions for rape, incest or a mother’s life.”
That would be extremely unpopular, even in Kansas: According to the co/efficient survey, only 5 percent of likely primary voters support a total ban on abortion. A ban like the ones that have passed in neighboring states — with an exception only for the mother’s health — also wouldn’t be popular, since only an additional 7 percent support a ban with that single exception. More primary voters favor a ban with exceptions for rape, incest or the mother’s health (19 percent), although that support is still far from overwhelming. Other respondents favor a ban on abortion after a “heartbeat” can be detected (6 percent) — cardiac activity usually happens around six weeks into a pregnancy — or after viability (16 percent). More than 2 in 5 (43 percent) said, however, that there should be no restrictions on abortion.
Kansans for Constitutional Freedom argues that the amendment’s wording is confusing and emphasizes that it would “chang[e] the constitution.” That’s a clever strategy given that voters are often hesitant to make big changes to policy and the law. This status-quo bias often makes ballot measures underperform their polling, and it could be another reason why this vote is closer than you might assume in such a red state.
On the other side, Value Them Both has sought to stake out a middle ground. Their ads contend that the amendment itself would not actually ban abortion but rather let the legislature impose “common-sense abortion limits” like parental notification (although this is somewhat misleading, because parental notification is already the law in Kansas). They also argue that the 2019 decision “[made] it impossible to regulate abortion in Kansas,” allowing “unlimited abortion.” That also isn’t quite true — some restrictions were struck down as a result of the decision, but many limitations are still in place, including a ban on abortion after 22 weeks of pregnancy. Proponents of the amendment have accurately pointed out, though, that Kansas is becoming a destination for women seeking abortion. One ad noted that the number of abortions performed in Kansas has increased in recent years (due largely to Texas and Oklahoma residents who can no longer get abortions in their home states) and reached a 10-year high in 2021.
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Both sides are also trying to make Kansas’s conservative inclination work to their advantage. In its advertising, Value Them Both has set itself up in opposition to the “radical left” and “unelected liberal judges,” unfavorably comparing abortion laws in Kansas to those in blue states like California and New York — an apparent attempt to harden the race along ideological, if not outright partisan, lines. And several ads from Kansans for Constitutional Freedom have framed the amendment as a “government mandate,” a nod toward the state’s preference for small government. By 51 percent to 25 percent, Kansans told Fort Hays State University in December that the state government shouldn’t place regulations on the circumstances under which someone can get an abortion. The anti-amendment campaign has even implicitly compared abortion regulations to mask mandates — casting them both as an attack on Kansans’ personal freedom.
Regardless of the outcome, the vote in Kansas will tell us something important about how the public is reacting to the U.S. Supreme Court’s decision to overturn Americans’ constitutional right to abortion. The court’s decision wasn’t popular — but now we’ll get our first chance to see if the ruling will actually spur voters into action.
