As Missouri is poised to pass a bill that would ban abortion eight weeks into a pregnancy and other states are passing or considering similar measures, Kansas finds itself in a bizarre place.
Over the past two decades the Sunflower State has implemented dozens of abortion restrictions. But a ruling last month by the state Supreme Court found for the first time that the Kansas Constitution protects the right to an abortion.
So now, while abortion foes in many other states are celebrating and feeling empowered by the possibility of the U.S. Supreme Court overturning Roe v. Wade, those in Kansas are working on a constitutional amendment to prevent the undoing of the many measures they’ve put in place.
“Everyone’s taking advantage of the supposed contention that Roe v. Wade is about to be overturned,” said Mary Kay Culp, executive director of Kansans for Life, the state’s largest anti-abortion organization. “And yet, here in the middle of America, where we fought hard for years to establish pro-life legislatures, the Kansas Supreme Court comes out with this decision.”
The court’s recent 6-1 ruling means that unless the state constitution is changed, abortion will remain legal in Kansas even if the U.S. Supreme Court should overturn Roe v. Wade, the landmark 1973 decision that guaranteed a right to an abortion. It also means additional scrutiny for abortion restrictions approved by Kansas lawmakers in recent years.
“And we can’t even appeal this to the U.S. Supreme Court,” Culp said. “The only thing we can do is amend the state constitution.”
A constitutional amendment needs to clear a high bar: two-thirds support from both the House and the Senate, followed by majority approval from voters statewide.
Culp said Kansas “used to be the late-term abortion mecca of the world.” But since 1997, she said, lawmakers have passed about 30 laws containing 40 provisions dealing with abortion, making it among the most restrictive states in the country.
“We’ve been smart about this,” Culp said. “We write our laws as well as we can to protect them from being challenged and overturned. Then all of a sudden, they march in here and they do this, and it’s really frustrating.”
In neighboring Missouri, the state Senate voted early Thursday to ban abortions eight weeks into pregnancy, even in cases of rape, incest or human trafficking. The vote came shortly after Alabama’s governor signed a bill banning virtually all abortions, making it the nation’s most restrictive law.
Some of the Alabama bill’s supporters acknowledge that it may be unenforceable but said its purpose was to be a vehicle that could be used to overturn the landmark Roe v. Wade case before a newly conservative Supreme Court.
Missouri’s proposal now goes to the House, where it is almost certain to pass, and Gov. Mike Parson has indicated he will sign it into law. The bill calls for criminal penalties for non-complying doctors that could send them to prison for up to 15 years. The measure also serves as another possible legal vehicle to challenge Roe v. Wade.
The bill — which allows exceptions only for medical emergencies — has a “trigger” provision banning abortion completely if the Supreme Court overturns Roe, which established a woman’s right to the procedure without undue government interference. It also contains redundant restrictions that would remain in effect if the two-month threshold were thrown out by the courts, as has happened in other states.
Missouri already has highly restrictive abortion laws, and only one clinic — Planned Parenthood in St. Louis — offers the procedure.
Some said Missouri’s law, if passed, would result in more women coming to Kansas for abortions.
“If you look at the clinics in the Kansas City area on the Kansas side, they’re already absorbing a lot of the Missouri patients, so I would anticipate even more,” said Julie Burkhart, founder and CEO of Trust Women Foundation, which operates the Trust Women Wichita clinic as well as clinics in Oklahoma City and Seattle. “We see patients from Missouri in Wichita as well.”
Abortion opponents in Kansas proposed a bill in 2010 banning abortions after a fetal heartbeat could be detected, but it didn’t go anywhere, said Mark Gietzen, founder of the Kansas Coalition for Life. One reason, he said: Kansans for Life and National Right to Life didn’t support it.
He said the bill, similar to those now being passed in other states, got a hearing in a House committee and was sent to the House floor for consideration but never came up for debate.
“It just doesn’t work when you have one pro-life group saying this and another saying that,” Gietzen said. “I realized right away that we had to have them on board, so we didn’t push it the following year.”
Culp said her organization was neutral on the bill.
“It’s one of those things that makes people feel good, but it’s not going to make a difference,” she said. “It’s not going to go into effect, and it’s going to get thrown out of court.”
Gietzen said he wasn’t upset that other states were passing tougher laws when Kansas appears to be hamstrung.
“I rejoice with them,” he said. “If you have an opportunity to do something great in Alabama, I’m not going to begrudge them. I want them to be as successful as possible. We celebrate success wherever we can find it.”
Asked whether she thought it was a good strategy for states to be passing bills that are likely unconstitutional, Culp said she wasn’t sure.
“In one sense, it’s good,” she said, “in that it’s showing how many people are pro-life.” However, she added, “It’s a shame to do something that isn’t really going to make a difference if it causes some kind of upheaval in your state politics, too.”
Are abortion opponents concerned that Kansas could now go back to being one of the least restrictive states again?
“Right this moment, we kind of are,” Culp said. “But here’s the deal. It’s just the latest frontier in this fight. And really, it can be the last one. We’ve gotten a lot of people educated. People that know about the abortion issue are rightfully upset. And if they get a chance to vote for something that sounds like it could help, they’re going to do it.”
Gietzen said he doubts abortion foes will propose any abortion restrictions in the next legislative session.
“I think the constitutional amendment has to happen first,” he said. “To do any other pro-life legislation now, without clarifying what our constitution says, would be dead on arrival.”
He said the amendment has an excellent chance of passing.
“I’m not going to say 100 percent, but I think it’s really up there in the high 80s or so,” he said. “It may not happen in one year, but three years from now we will have a new Kansas constitution in terms of the pro-life aspect.”
Abortion-rights advocates said they’re gearing up for the battle.
“We are certainly preparing for that,” Burkhart said. “We want to make sure that Kansans would understand if this were to go on the ballot exactly what it would do to the lives of people. I don’t know if the anti-choice folks in an election cycle really want to hang their hat on passing something like this. I don’t think they necessarily have the votes, but never say never.”
Burkhart said the passage of more and more abortion restrictions has been a wake-up call to those who have become complacent on the issue.
“I think what we will be looking at is massive voter mobilization,” she said. “People will go to the polls and speak their minds.”
Abortion-rights groups in Missouri expressed similar sentiments.
“Missourians will respond — we will mobilize and raise our voices until politicians start listening,” said M’Evie Mead, director of policy and organizing for Planned Parenthood Advocates of Missouri. “We will respond — in our communities and at the ballot box. This attack on health care and freedom will not go unanswered.”