Voters in Kansas, among the most conservative in the nation, bluntly ordered their state legislature on Tuesday not to take away a woman’s right to abortion – guaranteed since 2019 under the state constitution.
As of early this morning, with 96.7 percent of the votes counted, a measure proposed by the legislature seeking authority to end that protection had failed. The margin was 58.8 percent to 41.2 percent against the measure – “No” vote 534,134, “Yes” 374,611.
This was the first time that the abortion question had been tested in any election in America since the U.S. Supreme Court less than six weeks ago ended the right to abortion under the national Constitution. The Justices did so in the case of Dobbs v. Jackson Women’s Health Center, overruling the 1973 decision in Roe v. Wade establishing a right to abortion and the 1992 ruling in Planned Parenthood v. Casey sustaining that right.
Yesterday’s vote, coming in a record turnout in the Sunflower State, led some political analysts to predict that the abortion issue would become a prominent question before the entire nation when the general election is held on November 8. If that occurs, it probably would be of major benefit to Democratic candidates, perhaps enhancing that party’s chances of keeping control in both houses of Congress.
Here is the full text of the Kansas proposal, seeking to add a new section to the state constitution which would read:
“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, laws that account for circumstances of pregnancy resulting from rape or incest, or circumstances of necessity to save the life of the mother.”
Voters were given a “yes” or “no” choice, with “yes” freeing the legislature to limit or end abortion rights and “no” barring it from doing so.
At the time the legislature drafted the measure for submission to the state’s voters, the federal Constitution still protected abortion rights, so the legislature was seeking the option of curtailing those rights in the event that the U.S. Supreme Court overruled Roe v. Wade.
The measure’s phrase stating that the state constitution “does not create or secure a right to abortion” was designed explicitly to overrule a decision by the state Supreme Court in late April 2019, recognizing such a right under the first section of the Kansas constitution, spelling out a “Bill of Rights.”
That section, the state court ruled by a 6-to-1 vote, “affords protection of the right to personal autonomy, which includes the ability to control one’s own body, to assert bodily integrity, and to exercise self-determination. This right allows a woman to make her own decisions regarding her body, health, family formation, and family life – decisions that can include whether to continue a pregnancy.”
The state, the court added, can only “infringe upon” the right to end a pregnancy by satisfying the strictest legal test of constitutionality. It found that the two doctors who had filed that case were likely to succeed in their test of the constitutionality of a 2015 state law banning the most common method of abortion after 15 weeks of pregnancy.
That law was essentially the same as the Mississippi state law that the Supreme Court upheld by a 6-to-3 vote in the Dobbs decision on June 24.
At the time of the state court ruling three years ago, the abortion rights group that had sued in that case said that “this ruling affirms that abortion will remain legal in Kansas even if Roe v. Wade is overturned.”
When that state decision came down, the Supreme Court in Washington had not yet agreed to hear the Mississippi case that would lead to the nullification of the Roe and Casey precedents. The Dobbs case did not reach the Justices’ docket until June 2020 and was not granted review until May 2021.
