The Defeat of a Kansas Ballot Initiative Shows That Red-State Voters Don't Necessarily Favor Abortion Bans

The amendment lost by a surprisingly wide margin in a state where Republicans far outnumber Democrats.

By a surprisingly wide margin, voters in Kansas yesterday rejected a proposed constitutional amendment that would have allowed legislators to ban or severely restrict abortion. The Kansas election was the first time that voters had a chance to cast ballots on this issue since the Supreme Court's June 24 decision in Dobbs v. Jackson Women's Health Organization, which overturned Roe v. Wade, the 1973 ruling that established a constitutional right to abortion.

The amendment's defeat is significant in practical terms, since Kansas is located near several states that already have enacted abortion bans. It is also significant politically, since it suggests that voters do not necessarily support such laws even in red states where legislators are inclined to approve them. The post-Dobbs legal landscape will depend not only on state-by-state variations in public opinion but also on the strength and complexity of voters' views on the subject, which are more nuanced than the stark contrast between "pro-life" and "pro-choice" suggests.

The amendment that Kansas voters rejected would have overturned a 2019 decision in which the Kansas Supreme Court said the state constitution "affords protection of the right of personal autonomy, which includes the ability to control one's own body, to assert bodily integrity, and to exercise self-determination." The court said that right, in turn, "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."

According to the ballot summary, the amendment would have "affirm[ed] there is no Kansas constitutional right to abortion." That phrasing was clearer than the amendment's actual language:

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.

Despite the mention of possible exceptions and the reference to limits imposed by the U.S. Constitution, the amendment would have authorized a complete ban on abortion—a point that voters seem to have recognized. After a campaign in which each side spent around $6 million, a poll of "likely voters" conducted just before the election found that 47 percent planned to vote for the amendment, while 43 percent planned to vote against it and 10 percent were undecided. Given the poll's margin of error, those results suggested that voters were about evenly divided on the issue, and press coverage the day of the election predicted that the outcome would be close one way or the other. But in the event, 59 percent of voters opposed the amendment.

That result is striking in light of the state's partisan profile and earlier polling on abortion. Kansas has a Democratic governor, but Republicans control both chambers of the state legislature, where they have veto-proof majorities. Registered Republicans outnumber registered Democrats by nearly 2 to 1. Two-thirds of Kansas Republicans describe themselves as conservative. And in a 2014 Pew Research Center survey, 49 percent of Kansas adults said abortion should be illegal in "all" or "most" cases. By comparison, the share holding that view was 59 percent in Mississippi at one extreme and 22 percent in Massachusetts at the other.

As Reason's Elizabeth Nolan Brown notes, the Republican legislators who put the abortion amendment on the ballot thought they were maximizing its chances by presenting it to voters in a primary election. Because Democratic primaries in Kansas are frequently uncontested, Republican turnout tends to be stronger. But the abortion initiative seems to have substantially boosted voter turnout, which in recent primary elections ranged from 20 percent in 2014 to 34 percent in 2020.

The Kansas secretary of state has not reported the overall 2022 turnout yet. But based on the results reported with 95 percent of ballots counted, it looks like statewide turnout was close to 50 percent. The Kansas City Star reports that 54 percent of registered voters cast ballots in suburban Johnson County, the state's most populous county. That sort of turnout, the Star says, is "nearly unheard of in a primary election."

The election results suggest that opponents of the abortion amendment were especially motivated to vote and/or that late deciders were inclined to vote no. Those factors could be enough to explain the unexpectedly large margin of defeat in a state where nearly half of adults (49 percent) told Pew they thought abortion should be legal in "all" or "most" cases. In Alabama, Arkansas, Kentucky, Louisiana, Mississippi, Tennessee, and West Virginia, by contrast, the share of respondents who endorsed that position was 40 percent or less.

In 2019, all seven of those states enacted bans covering the vast majority of abortions. This November, Kentucky voters will consider a ballot initiative that, like the Kansas measure, would amend the state constitution to say nothing in it "shall be construed to secure or protect a right to abortion." That change seems much more likely to be approved in Kentucky, where just 36 percent of respondents told Pew they thought abortion should be legal in "most" or "all" circumstances.

Have voters' views changed now that Dobbs has freed states to restrict abortion? Maybe. A July survey by the Kaiser Family Foundation (KFF) found that 51 percent of adults in states that had pre-Roe abortion bans or "trigger" bans designed to take effect after Roe's reversal said they wanted legislators to "guarantee abortion access." But those states included several where public support for abortion bans fell short of a majority even in 2014.

As Nolan Brown notes, the results in Kansas, where voters were presented with a single issue, do not tell us how people will vote in elections involving many other issues. The fact that most voters in a given state don't want legislators to ban abortion does not necessarily mean they will reject candidates who support such laws. That depends on whether voters see abortion as the paramount issue in a particular election.

In the KFF survey, 55 percent of respondents said "abortion access" was "very important" in deciding how to vote this fall. While 77 percent of Democrats said that, just 33 percent of Republicans and 48 percent of independents agreed. Overall, 43 percent of respondents said Dobbs had made them "more motivated" to vote in November. That included 64 percent of Democrats, 41 percent of independents, and 20 percent of Republicans.

Given the wide geographical variation in opinion about abortion, national polling does not tell us much about how legislation will play out state by state. But it does show that Americans cannot be neatly divided into two sides, one favoring sweeping bans and the other opposing all restrictions.

In the most recent Gallup poll, conducted last May, just 13 percent of respondents said abortion should be "illegal in all circumstances," while 35 percent said it should be "legal under any circumstances." A plurality of 50 percent said abortion should be "legal only under certain circumstances." That middle view covers a wide range of policies, from strict laws with a few narrow exceptions to liberal laws that allow nearly all abortions.

While 39 percent of respondents described themselves as "pro-life," 56 percent opposed a ban on abortion after 18 weeks of gestation. Based on 2019 data collected by the Centers for Disease Control and Prevention, such a law would affect less than 3 percent of abortions. A 15-week ban like the one at issue in Dobbs likewise would affect a small share of abortions: a bit more than 4 percent.

By contrast, a ban on abortion after fetal cardiac activity can be detected, which typically happens around six weeks, would apply in the vast majority of cases. Counterintuitively, Gallup found that opposition to such a law was only slightly stronger than opposition to an 18-week ban: 58 percent. Still, a substantial percentage of people who described themselves as "pro-life" nevertheless opposed restrictions ranging from moderate to severe.

By the same token, people who identify as "pro-choice" are not necessarily opposed to all restrictions on abortion. Even states where pro-choice sentiment is strong and elective abortions are generally legal often restrict abortion after a certain cutoff, typically 22 to 24 weeks. In 2018, when 48 percent of Gallup respondents identified as "pro-choice," 77 percent said elective abortions should be illegal in the third trimester, although most thought there should be exceptions "when the woman's life is endangered" or "when the pregnancy was caused by rape or incest."

When asked about first-trimester abortions, 45 percent of respondents said they should be legal "when the woman does not want the child for any reason," while overwhelming majorities (83 percent and 77 percent, respectively) said they should be legal to preserve a woman's life or in cases involving rape or incest. Since 46 percent of respondents described themselves as "pro-life," many of them supported those exceptions.

These findings suggest that middle-ground abortion policies could be politically viable in some states. In Florida, for example, 56 percent of respondents told Pew they thought abortion should be legal in "all" or "most" cases. That position could be consistent with a 15-week ban like the one Gov. Ron DeSantis signed into law last April. By contrast, a six-week ban, let alone a ban beginning at conception, would not be supported by most Floridians.