Here is a summary of what panelists had to say during a forum in advance of the Aug. 2 constitutional amendment vote.
It’s hard to think of another issue as divisive as abortion.
People stand on opposing sides of the question more deeply rooted in their ideas about the morality and legalities involved than with many other issues—and more divided about whose rights take primacy.
Tuesday’s statewide vote on the Value Them Both constitutional amendment lets Kansas voters decide whether the state constitution confers a right to abortion or allows government funding for it.
A “yes” vote enacts an amendment that would declare that there is no right to an abortion in the Kansas Constitution. It would supplant a 2019 Kansas Supreme Court ruling that found that the Kansas Constitution’s Bill of Rights protects abortion access. A “no” vote rejects the amendment and allows the court’s ruling to continue to place limits on the state’s abortion regulations.
The Journal discussed the issue in a livestreamed event July 28. Executive Editor Chris Green moderated panels that included:
- Elizabeth Kirk, who teaches law and the family at The Catholic University of America’s Columbus School of Law and is director of its Center for Law and the Human Person. Kirk represented supporters of the amendment.
- Ashley All, spokesperson for Kansans for Constitutional Freedom, a coalition of groups that oppose the amendment, including Planned Parenthood Great Plains, ACLU Kansas and the Kansas Values Institute
- Six voters, identified by their first names only: Gloria, Kayla and Laura, who planned to vote “no,” and Ashley, Ben and Catherine, who planned to vote “yes”
Through the referendum, Kansas is the first state in the nation to vote on whether abortion is a constitutional right following the U.S. Supreme Court’s overturning of Roe v. Wade in June, leaving it to each state to decide.
“Whether you vote, how you vote, who you vote for, how you choose to make your opinion known or even the extent to which you’re willing to engage with different viewpoints is probably going to have a greater impact on the future in the post-Roe era, with so much being left up to the states for now,” Green says.
All and Kirk participated through recorded video presentations, which opened the event.
All describes the Kansas Supreme Court’s 2019 ruling in the case Hodes & Nauser v. Schmidt as having “found that all Kansans have a right to personal autonomy, which is a kind of broad right to make decisions about their lives, about their bodies, free from government interference.”
“Within that was a right to access abortion, not an unlimited right,” she says. “It is a limited right. There are numerous regulations on abortion already on the books, and those are still in place.”
Kirk says the Kansas Supreme Court’s 2019 ruling “put Kansas law at the extreme end of abortion jurisprudence” by adopting a legal standard called “strict scrutiny.” It now applies to any law regulating abortion that’s challenged in a Kansas court, and such laws will be “presumed unconstitutional,” according to the ruling.
“So, it shows you it’s a really high bar for a law to face,” Kirk says. “And it’s such a high bar that the Supreme Court of the United States actually rejected that test as the right one for abortion cases 30 years ago. They said abortion involves too many competing interests, especially as the pregnancy develops, and that strict scrutiny wasn’t the right test.”
Kirk says a “yes” vote takes no stand on abortion policy but is “a vote of confidence in the people of Kansas to be able to engage one another as they have in the past and to work together to embody in law the abortion policy that they think best reflects the needs and wishes of Kansans. … And now we can engage one another, persuade one another, persuade our legislators. If they enact laws we don’t like, we can vote them out of office.”
All counters that the amendment would give politicians “the right to pass any law they want regarding abortion, including a complete ban.” She says the amendment would give elected officials power to regulate abortion, “but it mentions rape, incest and the life of the mother in a way that I think is confusing to some people. They may look at that and think that those specific exceptions are carved out, but in fact they are not.”
Kansas already “heavily” regulates abortion, All says. The state bans abortion after 22 weeks of pregnancy and bans government funding for abortion. The amendment “allows politicians to go even farther, and that is what we are concerned about.” A “no” vote keeps existing “common sense regulations and restrictions” in place and “protects our right to make these decisions for ourselves and our families, free from government interference.”
“We expect the Legislature to move very quickly to ban abortion completely with no exceptions for rape and incest,” All says. “We’ve seen that in other states and we’ve also seen the consequences. … They have tried to be coy about their intentions following the vote, but there have been numerous indications over the years and also just recently about their intentions to ban it completely.”
But Kirk calls the argument that the amendment would lead to a total abortion ban “an extreme hypothetical” and says that “the best judge of what the people of Kansas would do is the kinds of laws that they have passed in the past” and that Kansans “typically have passed moderate regulations on abortion that the vast majority of Kansans and Americans agree on.”
“And the reality is that right now there’s no ability to have those conversations with one another,” Kirk says, “… because no matter what we come up with … it’ll be presumed unconstitutional from the get-go. Why would the legislature even waste their time and resources talking about laws that are going to be presumed unconstitutional?”
All, however, says that no legal challenges have occurred in three and a half years, so she thinks legal challenges are “unlikely.”
“Despite what the other side says, these laws are in place and enforced,” All says. “Providers in this state follow them. And another thing to note: Some of the language and messaging from the other side talking about how Kansas is unregulated and how Kansas has so many late term abortions—that is absolutely false. Kansas has not had a post-viability abortion, meaning after 22 weeks, in years. There hasn’t been one. Zero. Zero since, I think, 2018. So, I think it’s important to keep all those facts in mind when we’re looking at, first, whether this amendment is even necessary, which I would argue it is not.”
Kirk says it is “very important to understand” that “a ‘yes’ vote is neutral on abortion.
“It’s not a personhood amendment,” she says, “… so it’s just a vote of confidence in the people of Kansas to work this thing out. And abortion has very complex moral and legal questions involved that are exactly the kinds of things that are typically best worked out by legislatures, where we can have expert testimony from physicians or psychologists. … It’s important that we talk to one another and learn from one another, and that isn’t going to happen under the current Hodes regime.”
Kirk says she also expects that with a “no” vote, taxpayers would eventually be required to fund abortion, including elective abortion.
“And then what we’ll see, which we’ve already seen since 2019, is … the number of abortions creeping up as Kansas becomes a haven state for abortion. So, abortion is already up 13% in Kansas since Hodes, and that’ll just continue.”
All says that a “no” vote would keep abortion regulations in place but that “people will still be able to access care if they need it in cases of abuse, rape and in cases when, unfortunately, sometimes pregnancies have life-threating complications.”
After All’s and Kirk’s video presentations, Green moderated a discussion among the amendment’s three supporters and three opponents. He asked each of them to describe what shaped their views and their votes and why they decided to participate in the conversation.
Ashley says she chose to take part because she thinks “dialogue is more effective in bringing about change than one-sided social media posts and yard signs.”
Gloria says that, as a mother of five children, she thinks it’s “important that we hear both sides to come up with better solution for Kansas women.”
Ben is a lifelong Kansan, is married and has two young sons.
“I care about representative democracy,” he says. “I care about the discourse that we engage in that makes representative democracy necessary, and most of all I care about the community not only that I live in but that my boys live in and will inherit. And I think that this conversation and mapping out the kind of community we want to live in for human flourishing is really important.”
Kayla also is a lifelong Kansan. She has three children and joined the conversation because “it’s important to have dialogue and not just hateful rhetoric, to be able to talk calmly about why we think the way we do and what points shape how we vote.”
Catherine is a wife, the mother of “a budding toddler” and an entrepreneur who was born in Kansas and has lived in the state most of her life. She says it’s “hard to have these conversations in real life. I post on social media, but it’s an echo chamber. … I say let’s talk about it face to face.”
Laura is “also a proud Kansan,” a geriatric social worker, a Jewish woman and the mother of a 3-and-a-half-year-old daughter. She’s also 17 weeks pregnant, “which feels relevant for this discussion.” She says that “so few of our politics live in the polarities and so much more exists in the nuance.”
“I believe very strongly that all humans should have the right to bodily autonomy,” Kayla says. “I think that health care decisions should be made by the person whose health it is and their doctor, not politicians, not even voters. I don’t think that, unless you’re in those shoes and have lived in those moments, there’s no way you even have any stake in the game, because it’s not your life. It’s not your health.
Kayla was 22 weeks pregnant five years ago when she learned her unborn son had “a severe fetal anomaly. They deemed him incompatible with life.”
She says her unborn son, if he had been born, “would’ve suffered every second, minute, maybe a day until he died … and my job as a mom, I feel, is to protect my kids and make sure that they have the best life that they possibly can.”
“When we found this out about our son, I just couldn’t imagine him going through that, with the little life that he had just being pain and suffering because there’s nothing medically they could have done to help him.”
Kayla couldn’t have an abortion at 22 weeks in Kansas, so she traveled to another state to have the procedure done under a review of her case to ensure it was a medically necessary abortion.
“It’s not like they’re just going to do any abortion because somebody’s like, ‘Oh, I don’t want to have this baby.’ They’re doing this for women and families like myself who had to make the horrible choice that I did. I think that only I could have made that choice. I don’t think that anyone, unless you’ve been in that situation, can possibly even understand the pain and suffering that I had to go through, that I still go through. … That’s why I’m strongly a vote “no.”
When Ben was 19, his best friend got his girlfriend pregnant. Her mother pressured her to get an abortion. Ben’s friend offered to marry his girlfriend, and his friend’s parents offered support, including adopting the baby.
“She went ahead and did it anyway,” Ben says. “She didn’t consider … that he was the father of this child at all. And it absolutely crushed him. … It was very traumatic for everybody involved. … I’m certainly not naïve at all to the difficulties that people face and that women face with this.”
Gloria experienced a pregnancy in which she “didn’t know that my baby had passed and it had been over four weeks.” She had a dilation and curettage (D&C) procedure.
“And to have a physician say, ‘No, we can’t do it because this law has been passed’—to me that is very dreadful,” she says.
Ashley says that with voting, “the most important thing to me is protecting rights of the unborn.”
Her grandmother gave birth to Ashley’s mother at age 16. Her grandmother had been raped during a date.
“If she had chosen abortion, my mother would not have been born and consequently myself and my three children would not have been born either,” Ashley says. “Nobody forced her to keep the baby. It wasn’t a lifetime decision that she had to try to raise this child, but she gave us a chance to live. And it’s now positively impacted three generations of women. … And I’m glad that I wasn’t just seen as a choice, that my mother wasn’t just seen as a choice but she was seen as a life.”
Laura has “heard the harrowing stories of botched abortions pre-Roe v. Wade … and I’m totally for options but I’m totally terrified of a land where women don’t see that there are options and … I know in my heart of hearts that it will lead to dead women.”
Ben says that “a distinction has got to be made” that “elective abortions are different than ectopic pregnancies or septic uteruses or those types of things.”
“There is a difference between saving the life of the mother, which has an unintended consequence … versus an elected intentional abortion, of ending the pregnancy for that reason,” he says.
He cited the recent case of a 10-year-old Ohio girl who was raped and had to travel to Indiana for an abortion because of an Ohio law prohibiting abortion after a fetal heartbeat is detected.
He says that “to make that a normative instance on which you base all policy on an issue that’s so polarizing and to take that out of the hands of people, where at least half the country says, no we want it this way and the other way, and for judges just to take all of that out of our hands, to end the conversation entirely, I think it is a huge mistake.”
Watch the full video of the discussion at the Kansas Leadership Center’s YouTube channel.
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