(TOPEKA, Kan.) — When Kansans head to the polls on Aug. 2 to vote in their primary election, they will also decide on a critical ballot measure that could impact the future of abortion legislation in their state.
Kansas is the first state in the nation to vote on reproductive freedom after the U.S. Supreme Court overturned Roe v. Wade, ending the constitutional right to abortion. It is one of at least five states voting on reproductive rights this year, alongside California, Kentucky, Montana and Vermont. A measure that would amend the Michigan constitution to guarantee the right to reproductive freedom has also been proposed.
If the amendment passes, Kansas will be the fifth state to amend its state constitution to say it does not grant the right to abortion, joining Alabama, Louisiana, Tennessee and West Virginia.
The amendment has drawn national attention, particularly in the wake of the last month’s Supreme Court decision in Dobbs v. Jackson Women’s Health Organization.
“I think a lot of people see the vote here as a kind of indicator of where politics might be headed,” Richard E. Levy, JB Smith Distinguished Professor of Law at the University of Kansas School of Law, told ABC News.
Here’s what to know about the Kansas ballot measure, dubbed Value Them Both.
2019 state Supreme Court decision
The ballot measure is in response to a 2019 state Supreme Court decision on abortion restrictions. The ruling stemmed from a 2015 case challenging a Kansas law that aimed to largely ban dilation and evacuation, a method used in most second-trimester abortions.
In striking down the ban on the procedure, the judges ruled 6 to 1 that the Kansas constitution protects the “right of personal autonomy.”
“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 opinion states while prohibiting Kansas from restricting the right to an abortion “unless it is doing so to further a compelling government interest and in a way that is narrowly tailored to that interest.”
“The court adopted the most rigorous form of constitutional analysis, known as strict scrutiny,” Levy said. “So that in Kansas, under current law, regulations on abortion are valid only if they serve a compelling governmental interest and are narrowly tailored to that interest.”
Since the ruling, a lower court has upheld that a ban on dilation and evacuation is “unconstitutional and unenforceable.” Another law pertaining to abortion in the state has also been blocked. The statute, what would be considered a TRAP (Targeted Regulation of Abortion Providers) law by abortion rights advocates, would impose certain requirements on abortion providers.
Nearly a dozen other regulations on abortion remain in effect and have not been challenged, including mandated waiting periods and ultrasounds for patients, required parental consent, a ban on abortion after viability except where necessary to preserve a woman’s life or health, and limits on the use of public funding for abortion.
What’s on the ballot
In the wake of the 2019 ruling, the Republican-led state legislature attempted to pass a ballot measure that would reverse the decision. That measure failed in 2020 before passing the state House and Senate in 2021 to get on the ballot this year.
This is what voters will see as they head to the polls:
Explanatory statement. The Value Them Both Amendment would affirm there is no Kansas constitutional right to abortion or to require the government funding of abortion, and would reserve to the people of Kansas, through their elected state legislators, the right to pass laws to regulate abortion, including, but not limited to, in circumstances of pregnancy resulting from rape or incest, or when necessary to save the life of the mother.
A vote for the Value Them Both Amendment would affirm there is no Kansas constitutional right to abortion or to require the government funding of abortion, and would reserve to the people of Kansas, through their elected state legislators, the right to pass laws to regulate abortion.
A vote against the Value Them Both Amendment would make no changes to the constitution of the state of Kansas, and could restrict the people, through their elected state legislators, from regulating abortion by leaving in place the recently recognized right to abortion.
If the amendment wins with a simple majority, this passage, included on the ballot as well, will be adopted into the state constitution:
§ 22. Regulation of abortion. 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.
What voting ‘yes’ means
Voting “yes” on the ballot measure supports amending Kansas’ constitution to state that it does not grant the right to an abortion and leaves regulation in the hands of the state legislature.
“The Kansas state Supreme Court overreached in 2019,” Mallory Carroll, a spokesperson for SBA Pro-Life America, which is part of a coalition working to pass the amendment, told ABC News. “The purpose of the amendment is to neutralize this decision so that this is an area for the people to use the tools of democracy to decide through their elected officials, not judges.”
The ballot measure is not an abortion ban. However, opponents, including the coalition Kansans for Constitutional Freedom, argue that the bill’s language could open the door to one.
“If the amendment passes, there will be an effort by the legislature to quickly ban abortion with no or very few exceptions,” Ashley All, a spokesperson for Kansans for Constitutional Freedom, told ABC News, pointing to a failed bill introduced in the last legislative session that would have criminalized abortion in most cases.
“The language very clearly says that legislators may pass any law they want regarding abortion, and even in situations of rape, incest and the life of the mother. So we’re pretty confident that that’s where we’re headed,” All said.
Carroll said “anything is possible” when it comes to future abortion legislation if the amendment passes.
“That’s exactly because they’ll be using the tools of democracy to debate and find consensus,” she said. “We don’t know what consensus is going to look like in Kansas.”
One thing is clear — if the amendment passes, the laws targeting abortion providers and the second-trimester abortion procedure will “go into effect almost immediately,” Levy said. With no “trigger law” in place in Kansas, a general abortion ban would require further legislative action, he said.
What voting ‘no’ means
A “no” vote would maintain the status quo and affirm that reproductive rights are protected by the state constitution. The current enacted regulations on abortion would remain in effect, Levy said.
“There would still be a lot of regulations in place,” he said. “Some of those limitations might be vulnerable, but it’s unlikely.”
Opponents of the amendment have argued that abortion is already “heavily regulated” in Kansas even after the state Supreme Court ruling, while proponents are pushing for stronger pro-life policies.
If the amendment fails, Levy wagers that the state legislature might work to “test the limits” of the abortion protections in the state constitution.
Voter turnout a question
The ballot measure is being voted on in a primary election, which is expected to favor abortion opponents. Primary elections also historically draw fewer voters than general elections and might alienate independents, who otherwise have no reason to show up to the polls.
The primary coming weeks after the Dobbs decision may have helped generate interest in the ballot measure, Levy said. Early voter turnouts have been reported to be higher than usual in some areas as well.
“People are paying attention,” Levy said. “Whether that translates into high turnout, that’s another question.”
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