Kansas could find itself at the heart of the national abortion battle with lingering consequences
After nearly a half-century of political struggle, the right to abortion in the United States, at least as a constitutional matter, may come to an end in 2022. What would follow that is anyone’s guess — but Kansas will probably be at the center of it.
True, the “end of abortion” — mean the overturning of Roe v. Wade, the 1973 Supreme Court decision, which decided that the U.S. Constitution encompassed a right to privacy that guaranteed American women the freedom to choose abortion — has been predicted before.
But now, with a state law directly challenging Roe on the docket and a 6-3 Republican majority on the Supreme Court, the end of abortion as a constitutional right is more likely than ever.
Why might Kansas play a central role in abortion’s endgame? Because if the Supreme Court overturns Roe in the early summer of 2022, that would make abortion a purely state matter. And while some states have laws in place that greatly restrict or criminalize abortion, none of those laws would face an immediate political referendum. But in Kansas, they would.
On Aug. 2, 2022, the “Value Them Both” constitutional amendment will be on the ballot. This would eliminate from the Kansas state constitution language that has been interpreted as guaranteeing “bodily integrity” to Kansans, and thus the right of Kansas women to choose to access abortion services. Many assume that this anti-abortion rights amendment will pass easily.
But that is an assumption made while Roe v. Wade is still national law. What if it wasn’t? Then the passage of this amendment would take away a freedom defined by the Kansas State Supreme Court, with no similar guarantees on the national level remaining. How will that affect voters?
Will the prospect, after so many years, of writing legally unchallengeable state bans of abortion fire up moderate Republicans, increasing turnout in what will otherwise be an election with no major Republican contests to draw them to the ballot? Or will the prospect of an old ideological fight finally becoming “real” cause some otherwise committed abortion opponents to become fearful of alienating woman voters in November?
Similar questions could be asked of Democrats: Would the end of Roe before the August election inspire them in their fight or leave them hopeless?
Kansas may well see enormous amounts of money from organizations opposed to and supportive of women accessing abortion services flooding into the state. Campaigns for the state Legislature could be transformed by the amendment election, as might the gubernatorial race.
Gov. Laura Kelly’s desire to run a re-election campaign focused on the state’s COVID-19 recovery might be derailed, with her instead campaigning on her veto pen being necessary to prevent the Legislature from writing total abortion bans.
Similarly, Kansas Attorney General Derek Schmidt, who has relied on that same line about “bodily integrity” to defend the freedom to refuse masks and vaccinations, might have to reverse his rhetoric, and denounce his previous pro-choice language, if he doesn’t want the amendment’s possible success to work against him.
The decision of the U.S. Supreme Court is months away, and Roe v. Wade’s elimination isn’t guaranteed. Still, those who pushed this amendment set up Kansas, perhaps unintentionally, to be at the heart of a possible 2022 abortion endgame in America. Politicians and voters best prepare.
Russell Arben Fox teaches politics in Wichita.