If Kansans vote ‘yes’ on amendment, will abortions be banned in the state? What to know
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On Aug. 2, Kansans will decide the future of abortion rights in the state by voting on an amendment that would remove the right to abortion from the Kansas constitution.
There are a lot of half-truths floating around about the amendment, and we’ve heard from readers with a lot of questions about what is actually at stake.
Quick reminder: If Kansans vote yes on the ballot and the amendment passes, the legislature will be able to impose new restrictions on abortion, which could include banning the procedure. If Kansans vote no and the amendment does not pass, the Legislature would continue to be barred from passing most legislation that impedes an individual’s access to abortion.
One of the most common questions we’ve heard at The Star is along the lines of: Will Kansas completely ban abortions if the amendment passes?
The short answer is no, but it will be possible. The amendment itself would not enact an abortion ban, but it does open up a door for the state Legislature to pass one.
This story digs deeper into that question of what a ‘yes’ vote really means. If you have other additional questions, check out The Star’s Kansas abortion amendment FAQ.
What does it mean to remove the right to abortion in Kansas?
In 2019, Kansas State Supreme Court justices ruled that the Kansas constitution contains a right to bodily autonomy, including the right to end a pregnancy.
The court’s decision named a state right to abortion and continues to recognize the right in Kansas even after federal rights ended when Roe v. Wade was overturned.
That state right to abortion creates the need for an extremely high level of “strict scrutiny” from the court when it comes to restricting the procedure in Kansas. That high level of “strict scrutiny” is the legal standard over how abortion is regulated in the state.
It means that for now, most new restrictions, including a total ban, would be considered unconstitutional in Kansas.
If a majority of people vote yes on the ballot and the amendment passes, language would be added to the Kansas constitution that would take away that right to abortion.
Removing the right would change the legal standard for how abortions are regulated, and would allow the Kansas Legislature to impose new restrictions with fewer legal guardrails. That includes the possibility of completely banning the procedure, without any exceptions for rape, incest or medical emergency if enough lawmakers voted to do so.
Are Kansans voting on an abortion ban?
The amendment itself will not automatically ban abortion if passed.
A total ban would require a few more steps and would not be immediate or guaranteed in Kansas.
This amendment vote will decide whether the current right to abortion will remain in place or not.
If the amendment passes, legislators will be able to pass laws in the future that further restrict abortions, which could include a total ban.
Republicans currently hold a veto-proof majority in the Kansas Legislature. To pass an abortion ban, a majority of lawmakers and the governor would have to approve of one, or two thirds of lawmakers would need to vote to ban abortion and override a veto from the governor.
Will lawmakers ban abortion if the amendment is passed?
We don’t know for sure.
It is possible that lawmakers would introduce a bill that could either further restrict or ban abortion.
We can’t tell the future, but we do know that earlier this year, a far-right state legislator introduced a bill that would have banned and criminalized nearly all abortions, except in cases of miscarriage, stillbirth or ectopic pregnancies. The bill did not receive a hearing and died once the legislative session closed in May.
The primary vote-yes campaign has refused to answer questions about whether they will pursue an abortion ban after the vote.
How soon could lawmakers ban abortion if the amendment passes?
State lawmakers could hold a special session to discuss abortion rights, which is when lawmakers convene outside of the regular legislative session.
The Legislature could call a special session any time after the amendment vote and before January, when the regular session is set to begin. Special sessions must either be called by the Governor or a two-thirds majority of the Legislature.
Democratic Gov. Laura Kelly told reporters earlier this month she would not call a special session. Special sessions called by the Legislature itself are extremely rare, though the Legislature did gather the votes needed to call a special session on COVID-19 vaccine mandates last year.
What does a ‘yes’ vote mean for abortion regulations other than a ban?
If Kansans vote yes and pass this amendment, nothing would change about the current abortion regulations that are already in place.
Kansas already heavily regulates abortion, even while it is a protected right.
Currently, abortions after 22 weeks are strictly limited. Patients must receive mandatory state-written materials before going through with an abortion. An ultrasound is required, and so is parental consent for minors.
Right now, abortion clinics in Kansas face regulation from the state health department for safety, sanitation and cleanliness. Practicing clinicians must abide by license requirements and investigations by the state, just like all other licensed medical professionals in Kansas.
Also, telemedicine abortion is banned, so patients must go to appointments and be prescribed abortion medication in person.
If the amendment passes, what would change is the legal standard for what kinds of additional laws the Legislature could pass around abortion and what kinds of restrictions can be enforced.
Lawmakers would have the ability to add more regulations and restrictions on the procedure without needing to meet that legal standard of “strict scrutiny,” which is why a total ban without exception would be possible.
Will a ‘yes’ vote add any new abortion restrictions immediately?
Maybe not immediately, but a couple abortion restrictions that Kansas courts struck down in the past are likely to be enacted.
If the amendment passes, top anti-abortion lawmakers in the state have said they will prioritize ensuring two laws that have been struck down will be enforced: a ban on dilation and evacuation abortions, and a 2011 law that established an extra set of licensure and safety requirements for abortion procedures on top of the state health and safety and medical licensing requirements already in place.
Enforcing those two laws could take court filings or new legislation.
Who can vote on the amendment?
All registered voters can participate in the vote, regardless of party affiliation.
If you have other additional questions, check out The Star’s Kansas abortion amendment FAQ, or email us at kcq@kcstar.com.
This story was originally published July 27, 2022 at 5:00 AM.
