The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Kansas Voters Reject Repeal of State Constitutional Abortion Rights, by >58%-42% Margin
In 2019, the Kansas Supreme Court held (in Hodes & Nauser, MDs, P.A. v. Schmidt) that the Kansas Constitution's opening provision ("All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness") protected abortion rights. Today, Kansas voters overwhelming voted to preserve this interpretation, by a 58.8%-41.2% margin (with 96.7% of all ballots counted) [UPDATE: revised slightly downward from the original news, which had it a bit over 60%-40% with 89% of all ballots counted]. The ballot pamphlet stated:
Explanatory statement. The Value Them Both Amendment would affirm there is no Kansas constitutional right to abortion or to require the government funding of abortion, and would reserve to the people of Kansas, through their elected state legislators, the right to pass laws to regulate abortion, including, but not limited to, in circumstances of pregnancy resulting from rape or incest, or when necessary to save the life of the mother.
A vote for the Value Them Both Amendment would affirm there is no Kansas constitutional right to abortion or to require the government funding of abortion, and would reserve to the people of Kansas, through their elected state legislators, the right to pass laws to regulate abortion.
A vote against the Value Them Both Amendment would make no changes to the constitution of the state of Kansas, and could restrict the people, through their elected state legislators, from regulating abortion by leaving in place the recently recognized right to abortion.
Shall the following be adopted?
§ 22. Regulation of abortion. 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.
I'm glad to see this result as a policy matter. I thought that Roe v. Wade was mistaken, and that decisions about abortion should, as a federal constitutional matter, be left to the political process. (I have no firm opinion on the Kansas Supreme Court's state constitutional decision, which I haven't reviewed closely.) But the political process has worked, and I think Kansans reached the right result. And this is in a state where the legislature is over 2/3 Republican in each house, and where Republican registered voters outnumber Democrats by a more than 60%-40% margin. [UPDATE: Looking at the vote totals in the primaries, it appears that Republican voters in this particular election likewise outnumbered Democratic voters by over 60%-40%.]
I also hope this is the harbinger for other states, including ones where earlier polls had shown a close division (this May story, for instance, estimated the "mostly legal"/"mostly illegal" divide among Kansas on abortion at 48%-47%, not far from the results in states such as Texas, South Carolina, and Missouri). Of course, it might also be that there's status quo bias, and the Kansas Supreme Court's decision helped tip the scales; I suppose we'll learn more as we see more political battles on the subject elsewhere.
Finally, it may well be that a less ambitious amendment, for instance one that would authorize bans on abortion after the first three months of pregnancy (a position that appears popular even on a nationwide basis), would prevail.
