Supreme Court fight intensifies abortion debate in Kansas as Marshall and Bollier clash
Before the Aug. 4 Kansas primary decided nominees for the open U.S. Senate seat, the state’s leading anti-abortion group mailed hundreds of thousands of postcards warning voters not to give Democrat Barbara Bollier a say in any future Supreme Court vacancy.
Neither Bollier nor her Republican opponent, Rep. Roger Marshall, will get a vote on President Donald Trump’s nominee to the high court, federal appeals Judge Amy Coney Barrett, whose confirmation hearings are scheduled to begin October 12.
But the tight timeline set by GOP leaders — calling for a Senate vote on Coney Barrett before Election Day to fill the vacancy created by the death of Justice Ruth Bader Ginsburg— ensures that debates over judicial selection and abortion rights will exert a powerful influence on the Kansas contest.
“Make no mistake, this is a defining issue of this election,” Marshall said in a campaign email shortly after Trump formally introduced Coney Barrett in the White House Rose Garden Saturday. “When I’m in the U.S. Senate, I am committed to always voting to confirm pro-Constitution judges who stand for life and for our Kansas values.”
Bollier opposes a confirmation vote before the election and did not immediately comment on Coney Barrett’s nomination.
Kansas has experienced intense conflict over abortion for half a century. That won’t end after the election, but the confirmation fight has given the issue even more urgency.
Voters on both sides are headed into the election believing that Roe v. Wade, the 1973 decision that legalized abortion nationwide, is at risk of being overturned if Coney Barrett, 48, takes the seat of the liberal icon Ginsburg.
A devout Catholic, Coney Barrett said in 2013 she believes life begins at conception, according to an article in Notre Dame Magazine. She served as a clerk to conservative Justice Antonin Scalia in the late 1990s and has said she shares his judicial philosophy.
Coney Barrett has not explicitly said how she would rule on a challenge to Roe. But one of her most vocal boosters, Missouri Republican Sen. Josh Hawley, said he believes there’s no doubt that she regards it as having been wrongly decided.
“We have a lot on the line with this election cycle,” said Julie Burkhart, president and CEO of Trust Women, a Wichita clinic that provides abortions. It was founded after the 2009 murder of her colleague George Tiller, a Wichita doctor who performed abortions.
“Sen. Bollier has been a stalwart when it comes to protecting reproductive rights and access and justice. She’s been a reliable voice in the Kansas Legislature. Unfortunately, we haven’t found the same with Congressman Marshall,” Burkhart said.
Mary Kay Culp, executive director of Kansans For Life, which sent out the pre-primary postcards through its PAC, said the confirmation fight reinforces for voters the importance of judicial selection. She said it will take more than one justice to overturn Roe, which is why she regards retaining GOP control of the Senate as critical.
“Our point was about the Supreme Court. Our point for 40 years has been about the Supreme Court,” Culp said.
A range of views in Kansas
The two candidates stand on opposite ends of the spectrum.
Bollier, a state senator from Mission Hills and retired anesthesiologist, has consistently opposed abortion restrictions during her 10 years in the Kansas Legislature. That includes the state’s ban on abortions after 22 weeks, which in 2014 she said conflicted with science.
She was endorsed early by EMILY’s List and Planned Parenthood Action Fund, two groups that advocate for abortion rights.
“As a physician herself, Barbara has always supported privacy between a patient and their doctor, especially when it comes to making difficult, painful medical decisions. She believes the government does not belong in doctors’ offices,” said Bollier’s spokeswoman Alexandra De Luca.
Marshall, an OB-GYN whose congressional district spans western Kansas, has sponsored legislation restricting abortion and was supported in his contentious GOP primary by anti-abortion groups.
The congressman says that he opposes abortion in all cases, including when the woman is a victim of rape or incest. His campaign said this belief, however, does not preclude him from voting on legislation that restricts abortion but makes these exceptions.
This position puts Marshall to the right of most Kansans, according to a 2018 poll by Fox News and the Associated Press. It found a range of views among the state’s residents.
The survey said only 14% of respondents thought abortion should be illegal in all cases, while 32% said it should be illegal in most cases. A plurality of 35% thought it should be legal in most cases, while only 19% thought it should be legal in all cases.
But Kansas Republicans have a long history of successfully using the issue to turn out voters in tight races. Marshall believes the fight over the Supreme Court will be a boon to his campaign.
“There’s been a big surge in motivation among voters we’re talking to. They’re reminded of what is at stake, and they’re not going to sit this one out,” Marshall said in a statement when asked about the impact on the race.
Scott Paradise, a GOP consultant who has worked in Kansas and Missouri, said the battle over the future of the court will help Marshall consolidate Republican support after the heated primary.
“To the extent that any lingering division still exists, the Supreme Court fight should immediately resolve it. The opportunity to replace a very pro-choice justice with a very pro-life one is a very attractive carrot to dangle in front of Kansas conservatives,” said Paradise, a former aide to Hawley, who has set opposition to abortion as a requirement for the nominee.
‘Riling your base up’
Abortion likely saved Sen. Bob Dole in his closest re-election fight. Damaged by his tenure as Republican National Committee chair while the Watergate scandal brought down Richard Nixon’s presidency, he eked out a 1974 win over Democratic Congressman Bill Roy by less than a percentage point. It was the last time a U.S. Senate race in Kansas was within double digits.
It was also a year after the Roe decision.
During the Kansas State Fair debate, which was focused on agriculture, Dole attacked Roy, an OB-GYN, reportedly asking him, “I want to know how many abortions you’ve done.”
Burdett Loomis, a political scientist at the University of Kansas who has studied the 1974 race, said the confrontation lifted Dole in traditionally Democratic precincts in southeast Kansas, where a large number of Catholics reside.
Loomis said in 1974 the issue helped persuade swing voters. That’s no longer the case.
“Many of those pockets in southeast Kansas have been voting for Republicans for a long time. Any time you use abortion these days it’s not conversion. It’s all about riling your base up,” Loomis said. “The context is very different.”
Marshall appeared to be trying to channel Dole’s energy during last week’s WIBW Radio debate, held in place of the traditional Kansas State Fair event. He disregarded the format rules and asked Bollier for her views on late-term abortions.
Bollier responded, “Excuse me.” Marshall’s campaign circulated the clip and accused Bollier of dodging questions.
Bollier’s campaign said Marshall broke the rules and that she’s happy to answer questions on the topic. Earlier in the debate, she responded to a moderator’s question by affirming her support for abortion rights and criticizing Marshall for wanting to “inject more government into these private health care decisions between a woman and her doctor.”
David Kensinger, a GOP consultant who ran successful Senate campaigns for Republicans Sam Brownback and Pat Roberts, said the focus on the Supreme Court will help Marshall draw contrasts with Bollier on a range of social issues, including abortion and gun rights.
“This crystallizes the issues,” said Kensinger.
“Wherever he can draw an issue-based contrast, those almost always benefit Republicans in Kansas,” said Kensinger, who pointed to the Wichita area as a battleground in the race.
Battleground Wichita
Wichita, where Bollier campaigned Friday, has a long history of intense fights over abortion. Anti-abortion activism transformed the region’s politics in the 1990s, said state Rep. John Carmichael, a Wichita Democrat.
“We saw Sedgwick county turn from what was a Democratic stronghold… to the hotbed of the conservative radicals,” Carmichael said.
Carmichael said that the movement’s influence waned following Brownback’s governorship and predicted Democrats could do well next month in Sedgwick, where Democratic Gov. Laura Kelly won two years ago.
He also disputed the notion that the Supreme Court fight will be a boon to Republicans because of Trump’s repeated comments tying the vacancy to a potential court fight over the presidential election’s results.
“It’s a powerful incentive for progressives and moderate Republicans to vote in the senatorial race,” Carmichael said.
The confirmation battle will also highlight health care, which Bollier has made the focus of her campaign as the court prepares to weigh the constitutionality of the Affordable Care Act a week after the election.
The Trump administration supports the lawsuit brought by states with Republican attorneys general, including Kansas and Missouri. Bollier’s campaign noted that Marshall voted against a resolution condemning the Department of Justice’s support of the challenge.
Bollier has taken the same tack as other Democrats in calling for Republicans to wait until after the election to replace Ginsburg, a precedent they set in 2016 by refusing to hold hearings on President Barack Obama’s nominee in the final year of his presidency.
“Many Kansans believe — and Barbara agrees — that the United States Supreme Court should not be politicized. She thinks lawmakers should follow the precedent set in 2016 and not move forward until Americans have exercised their right to vote in a few weeks,” said De Luca.
Some Democrats, such as Massachusetts Sen. Ed Markey, have floated expanding the court in response to Coney Barret’s likely confirmation.
The constitution does not specify number of justices, and it was increased multiple times during the 19th Century. It has stayed at nine since 1869 and the last president to attempt an expansion, Franklin Roosevelt in 1937, was unsuccessful.
Bollier “does not support changing the number of justices on the Supreme Court,” according to her campaign, but the invocation of the idea by other Democrats is being used against her campaign.
Marshall has been fundraising off of the notion that Democrats will pack the court.
“Kansas could very well be the last line of defense against the Democrats’ push to end the filibuster, pack the Supreme Court, and force their socialist agenda on the American people,” Marshall said in a recent fundraising plea.
The Wichita Eagle’s Jonathan Shorman contributed to this report.
