Kansas voters on Tuesday will be the first in the nation to have their say on whether abortion should remain constitutionally protected in the state after. And with the future of abortion rights in the state on the ballot, Kansas is seeing a surge in early voting ahead of the primary.
Since the Supreme Court rolled back the nearly 50-year-old decision in June, lawmakers in more than a dozen predominantly Republican-controlled states have already moved to ban or further restrict– and further efforts are expected. The court's decision in Dobbs v. Jackson Women's Health Organization leaves it up to states to decide whether abortion remains legal.
In Kansas, the right to an abortion remains protected – at least for now.
In 2019, the state Supreme Court ruled personal autonomy is protected in the state constitution's bill of rights and applied strict scrutiny to regulating abortion. An amendment would need to be passed to remove that constitutional right.
The "Value Them Both" Amendment will appear on the ballot for the primary on Aug. 2. A "yes" vote for the amendment would affirm there is no constitutional right to an abortion in Kansas and allow the Republican-controlled state legislature to pass new laws further restricting or even banning abortion access. A "no" vote against the amendment upholds the protected right to an abortion in the state.
The amendment was proposed by the state legislature and put on the ballot in January 2021 with two-thirds of the vote in both chambers. A previous effort to get an abortion amendment on the ballot failed in February 2020 after several Republicans joined Democrats to block it in the Kansas House.
"When you read the language of the amendment, it's so clear that this is not a ban on abortion. This just returns the power to the people instead of removing us from the discussion entirely," said Danielle Underwood, spokesperson for the Value Them Both Coalition, which includes anti-abortion rights groups Kansans for Life, Kansas Catholic Conference and Kansas Family Voice.
They have shied away from publicly saying exactly what limitations on abortion they would like to see passed in the Kansas legislature should the amendment pass. But legal experts say the amendment paves the way for banning abortion in the state.
"What is misleading is people saying 'well, it just will allow debate' and suggesting there may be some reasonable discussion about this," said University of Kansas law professor Stephen McAllister, who clerked for Justice Clarence Thomas. "It really is a referendum on whether we're going to let the legislature ban abortion or not."
McAllister said if the amendment passes, he expects the legislature to propose bans starting the first or second day of the next legislative session in January. A ban with very limited exemptions was already introduced in March this year.
"Under the language of the amendment, it would be possible to adopt a total ban on abortion from the point of conception until birth with no exceptions for rape, incest, for the life and health of the mother," said University of Kansas constitutional law professor Richard Levy.
While abortion is currently protected in Kansas, there are multiple regulations on the books, some of which have gone unchallenged. Abortion is strictly limited after 22 weeks, the exception being when the woman is in serious physical jeopardy. Patients seeking an abortion are also required to receive an ultrasound and counseling and wait 24 hours. The use of telemedicine to administer abortion is prohibited. Patients under 18 require parental consent.
According to a report by the Kansas Department of Health and Environment, nearly 70% of abortions performed in Kansas in 2021 occurred before nine weeks. Just over 20% occurred between 9 and 12 weeks. Only 3.8% occurred between 17 and 21 weeks.
"The fact is, the 'no' vote in Kansas is a middle-of-the-road vote. It is a moderate position. It is basically leaving all the regulations that are on the books in place," said Ashely All, spokesperson for Kansans for Constitutional Freedom, the main coalition opposing the amendment.
Organizations are spending millions on advertising in the state for and against the amendment. According to tracking by AdImpact, Kansans for Constitutional Freedom is spending nearly $6.5 million on advertisements against the amendment; Value Them Both is spending nearly $4.5 million on ads in support of the amendment. Other anti-abortion rights groups have also spent nearly $2 million combined on ads in the state.
Putting the amendment on the primary ballot rather than the general election ballot in November has fueled concerns among those who support abortion rights and oppose the amendment. More Republican voters are expected to turn out in August because Republicans have more contested primary elections. In 2020, turnout for the primary was less than half of what it was for the general election in the state.
As of Monday morning, more than 271,000 voters had cast ballots in the Kansas primary, a significant increase in early voting from the 2018 midterm primary, in which just under 90,000 ballots had been cast by this time.
Of those who voted in the 2022 primary so far, more than 198,000 were early in-person and 73,427 mailed ballots had been returned of the more than 120,000 mailed out. Republicans had a slight lead in voting overall with more than 122,000 ballots cast to Democrats, who had more than 106,000 ballots cast. More than 40,000 unaffiliated Kansans had also voted early.
Democratic Gov. Laura Kelly and her likely GOP opponent are on opposite sides of the issue. Kelly has said she believes reproductive decisions should be between a woman and her doctor. In an email to CBS News, her campaign spokesperson Madison Andrus said the governor will "continue to oppose all regressive legislation that interferes with individual freedoms or threatens the strides we've made in recent years making Kansas a constructive place to do business. That includes opposing efforts to change the state constitution this August."
When Roe was overturned, Republican Kansas Attorney General and Republican governor candidate Derek Schmidt said in a statement he prefers a future with "less abortion, not more" and would vote for the amendment. He did not specify what legislation he would like to see should the amendment pass.
Since the Supreme Court overturned Roe, Kansas also had seen some uptick in voter registrations. According to vote.org, the state had a 963% increase in individuals starting the voter registration process through the organization's website from the two weeks prior to the court's June 24 decision. But it's unclear if those registering were for or against the amendment.
If the amendment passes, Kansas would join four other states that have constitutional amendments stating the state's constitution does not protect the right to an abortion. Those states, Alabama, Louisiana, Tennessee and West Virginia, have all moved to ban or further restrict abortion following the Supreme Court overturned Roe.
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