Kansas is moving closer to a showdown over abortion that would add volatility to the 2020 elections.
In a landmark case this spring, the Kansas Supreme Court found the state constitution guarantees a woman’s right to an abortion. The decision set abortion opponents scrambling to fight back.
Now, the outline of their response is beginning to come into focus.
The state’s leading anti-abortion group, Kansans for Life, on Tuesday said its goal is to pursue a constitutional amendment next year to reverse the decision.
And lawmakers took their first steps toward considering an amendment by holding a hearing in Topeka where anti-abortion activists made the case for one.
“We’re really stuck here,” Kansans for Life director Mary Kay Culp said. “It’s really – they always talk about U.S. constitutional crises – we’ve really got one here in the state of Kansas, because there is no other way to do it from our understanding.”
Anti-abortion activists fear laws passed over decades restricting the practice may now be vulnerable. Time and again, Kansas has toughened abortion regulations in a variety of ways, from parental notification rules to font requirements.
The effect has been to cut abortion in half, Culp said. But she and others now think the decision, which requires restrictions to clear the highest possible legal bar, could ultimately be used to weaken or bring down those laws.
Culp and other anti-abortion activists spoke Tuesday to the Legislature’s Special Committee on the Judiciary. The panel is expected to decide Wednesday whether to recommend an amendment, after hearing from abortion rights supporters.
“At the end of the day, it’s the people’s constitution. It’s the people’s right to decide this issue,” Rep. Nick Hoheisel, a Wichita Republican, said.
Kansans for Life’s amendment, Culp said, will aim to reverse the Supreme Court decision. Speaking to lawmakers and reporters, she indicated it would give the Legislature power over abortion policy. She also ruled out an amendment that would ban abortion outright.
That’s likely to be of little comfort to abortion rights supporters. Many fear President Donald Trump’s appointment of two justices to the U.S. Supreme Court has made it more likely to sharply limit or even reverse the 1973 Roe v. Wade decision that affirmed abortion as a constitutional right nationwide.
Calling the Kansas Supreme Court’s opinion “thoughtful and well-reasoned,” Planned Parenthood Great Plains Votes said an amendment would discriminate against women.
“It is vital that Kansas legislators realize that they will not be on the right side of history should they allow a vote that could strip rights from Kansas women,” Rachel Sweet a lobbyist for the group, wrote in a letter to lawmakers. “Particularly in light of the threats at the federal level, Kansas must not go backwards.”
Politically, the effects of an amendment are far from certain.
If two-thirds of the House and Senate approve the amendment, it goes to a statewide vote. Gov. Laura Kelly, an abortion rights supporter, wouldn’t have the power to veto it. Lawmakers would get to choose whether to put it on the August primary or November general election ballot.
Regardless of the date, the amendment would be appearing on ballots alongside a host of candidates. Kansas has no shortage of contested races, including for U.S. Senate and every state legislative seat.
Still, it’s less than clear that amendment supporters could rally enough lawmakers to their side in the first place.
“Anytime you get a passionate issue like this and you’re going to have heated debate on both sides and it’s going to be a challenge,” Hoheisel said.
Rep. John Carmichael, a Wichita Democrat, indicated he wants to know more about the amendment Kansans for Life wants. If an amendment includes exceptions, such as for the health of the mother or allowances for abortions in the case of rape and incest, “then the chances for success in the Legislature might be better.”
Peter Northcott, a lobbyist for Kansans for Life, said top anti-abortion attorneys are being consulted on potential amendment language. He said it’s not uncommon for legislative proposals to not be introduced until the legislative session begins in January.
Bob Beatty, a political scientist at Washburn University, suggested anti-abortion activists may have had easier time moving an amendment through the Legislature a few years ago.
“Kansas politics is, overall, not as conservative as it was during the Brownback era,” Beatty said, referring to former Republican Gov. Sam Brownback.
In an illustration of the difficulty amendment supporters will face, lawmakers were unable to find two-thirds support in the House in May to override Kelly’s veto of a bill that would have required doctors to tell women that abortion medication can be reversed.
Culp told reporters the vote may mean Kansans for Life doesn’t yet have the necessary support for an amendment. But Northcott, standing next to Culp, rejected the comparison.
“That vote was the first attempt at an override of a new governor’s veto. This is completely different,” Northcott said. “This is to allow the people the ability to weigh in at the ballot box.”