Why Kansas is a bellwether for abortion rights

This fight is the first of its kind post-Roe v. Wade, and analysts say it could go either way. So it’s a bellwether for whether ballot measures will help protect — or end — abortion rights across the country.

Kansas’s ballot initiative could also lead to an end to abortion access for thousands of women in the Midwest and Texas, who may soon have nowhere in the region to go. Here’s what to know about it.

What the ballot measure says — and what it would do

Abortion rights supporters argue that what the measure says and what it will do are two different things. The ballot measure asks Kansans whether they want to repeal the state’s constitutional protection for abortion.

A “yes” vote would overturn Kansas’s constitutional protection for abortion. A “no” vote would keep those protections in place.

If the ballot measure passes, it would allow the Republican legislature to pass laws banning abortion. That’s a realistic outcome, given that Kansas Republicans have tried for years to do just that: They attempted to ban abortion in 2013, and in 2015 Kansas became the first state to ban a common procedure for second-trimester abortions. The state’s Supreme Court knocked that down, affirming Kansas’s constitutional right to an abortion in the process.

But if conservatives can change the state’s constitution, they can ban abortion. Even though Kansas has a Democratic governor, state Republicans have a supermajority in the legislature and can override her veto.

Supporters of the ballot initiative — aware that total abortion bans are unpopular, even among a sizable chunk of young Republican women — say that the amendment wouldn’t necessarily lead to a particular policy. They argue that the state shouldn’t be hemmed in by that 2019 decision by the state’s Supreme Court, which permits abortions until about 20 weeks.

In a post-Roe world, say supporters of the ballot initiative, the legislature should get to decide.

“Restore common-sense abortion limits,” an ad for the campaign says.

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But opponents charge that this ballot initiative is really a gateway to banning abortion in Kansas.

The ballot measure doesn’t say when abortion should be banned in Kansas, and leaders of the initiative have avoided commenting on what kinds of restrictions they’d support, in an attempt to make the initiative appeal as widely as possible. But a Kansas state senator and a former organizer for the ballot initiative blurred those lines when they told supporters that if this ballot measure was approved, they’d push to ban abortion entirely.

It’s also unusual to have a statewide ballot measure in a primary, rather than a general election, when more voters turn out. Traditionally, only voters affiliated with a party can vote on primary day (though unaffiliated voters can vote on this ballot initiative). Abortion rights supporters point to this timing when they argue that the other side is secretly trying to ban abortion in the state.

Opinion polling is limited, but the available data suggests that Kansans are closely divided on whether to keep or end abortion protections.

What it would mean for abortion access in the Midwest

If this ballot initiative passes, it could soon be nearly impossible to get an abortion in the region. In the month since the Supreme Court repealed Roe, most of the states bordering Kansas have either tried to ban abortion or succeeded: Missouri and Oklahoma almost immediately banned abortion; a third state, Nebraska, is trying to severely limit abortion. Kansas abortion providers said they were inundated with patients from as far away as Texas after that state’s six-week ban took effect last fall.

As other states tighten their restrictions, abortion opponents have singled out Kansas as a “sanctuary” for abortion, reports The Post’s Annie Gowen.

How did Kansas become the center of the U.S. abortion fight?

Kansas has a history of being open to abortion rights. One of the country’s few third-trimester abortion providers operated out of Wichita before he was killed in 2009, NPR notes.

Republican lawmakers have tried for decades to restrict abortion as much as possible. But in 2019, their efforts to end second-trimester abortions backfired when the state Supreme Court knocked down their law and ruled that Kansas’s constitution expressly provides a right for abortion. The constitution’s promise to “equal and inalienable natural rights” includes, the court said, “the ability to control one’s own body.”

With the ruling, the justices made it impossible for abortion opponents in Kansas to create new legislation ending abortion rights without first changing the constitution. (By overturning Roe, the U.S. Supreme Court only lifted federal restrictions on abortion; it didn’t implement any in states.) Hence, this ballot initiative.

What the results in Kansas could mean for other fights on abortion

The post-Roe world has created a tangle of abortion laws and court fights that sometimes mean abortion restrictions change by the day.

Ballot initiatives are another part of that battle, and a relatively big one. This year, at least four other states are planning to have ballot initiatives on protecting abortion rights (in Vermont and California) — or ending them (in Kentucky). Advocacy groups on both sides of the issue are collecting signatures in other states, such as Michigan and Montana, to try to define abortion rights for years to come.

More and more often, the left in particular has turned to ballot initiatives to advance policies without conservative state legislatures, on issues ranging from gun restrictions to the minimum wage to health care. In 2017, for example, voters in Maine overwhelmingly expanded Medicaid by ballot initiative, over the objection of the state’s Republican leaders.

But putting abortion proposals directly to voters is a relatively new political battle, so no one’s really sure how these fights are going to turn out. National opinion polls show that a majority of Americans want abortion protections and think total bans go too far, according to a new Washington Post-Schar School poll. Americans who support abortion rights also say they’re less motivated to vote in November

So what happens in Kansas — which managed to hang on to abortion protections immediately after Roe fell — is seen as a bellwether for battles on abortion.