The right to an abortion will remain in the Kansas Constitution.
In the first ballot test of abortion rights in a post-Roe America, Kansas voters turned out in historic numbers to overwhelmingly reject a constitutional amendment that would have opened the door for state lawmakers to further restrict or ban abortions across the state.
The Associated Press called the race at 9:40 p.m. Central.
The vote stands as a major win for abortion rights advocates, preserving access in a red state as the procedure is banned or severely restricted in much of the region.
It upholds a 2019 Kansas Supreme Court ruling that, in response to an attempt to ban a common second-trimester abortion procedure, said Kansans had a right to bodily autonomy and therefore the right to terminate a pregnancy.
The movement against the amendment succeeded in turning voters out in historic numbers, despite its placement on a primary ballot many assumed would favor Republicans. They were able to keep margins in rural counties smaller than anticipated.
Secretary of State Scott Schwab said early in the evening that anecdotal evidence indicated the turnout could match the 2008 presidential race — 63.3%.
More than $12 million was poured into the 20-month campaign.
The race drew national eyes as a potential bellwether for how voters in a Republican state would respond to the abortion question once federally protected rights are gone.
The campaign against the amendment was fueled by a late June U.S. Supreme Court ruling (and early summer leak) eliminating federal protections for abortion rights found in Roe v. Wade.
“I think the Dobbs decision definitely felt like a gut punch to a lot of folks in our community and I know it did for me for sure. But once we caught our breath, we stood up straight, we got to work,” U.S. Rep. Sharice Davids, D-Kan., told a crowd at a “vote no” watch party early in the night.
As Kansas’ neighbors, Oklahoma and Missouri, promptly banned abortion, and then struggled through confusion about the laws, forces on both sides of the issue in Kansas dove into one of the most expensive ballot initiative campaigns in state history.
The coalition against the amendment won over voters in the red state with messaging that appealed to libertarian sensibilities — warning about government control over private health care decisions and future bans on abortion.
Advocates for the amendment insisted that the vote would not directly ban abortion. They refused to answer questions about whether they’d seek a ban if it passes, even after Roe was overturned and the National Right to Life Committee published detailed model legislation to ban abortion in all 50 states.
Instead they sought to convince Kansans that, without a change to state constitution, abortion would be rendered unregulated and uninhibited in the state. Kansas, they said, was guaranteed to be a destination for abortion.
“The laws we have on the books are truly just sandcastles,” Kansans for Life and Value them Both Coalition spokeswoman Danielle Underwood said during a Church of the Resurrection event last week.
The amendment proved to be a major driving force for primary voters, and many didn’t buy the “vote yes” campaign’s message.
Voters outside an Olathe polling place last week cited the amendment as the most important issue on the ballot.
John Bundrick, a 33-year-old Olathe resident, voted with his young children in tow.
“We believe that life starts at conception and that every human has this God-given right,” he said. “Obviously she’s a mother and values what she does with her body but at the same time, having a little one inside is also a body that needs to be respected.”
23-year-old Sarah Heckman arrived to vote “no” with her mother. The 23-year-old said she normally doesn’t vote in primaries but this vote was different.
“It sets a precedent for the rest of the nation,” she said.
Even in traditionally red, rural counties “no” voters turned out. In central Kansas’ Chase County 527 of 1,093 voters opted to reject the amendment. In Western Meade and Trego counties, “no” votes commanded about 30% of the vote.
Early in the night several rural eastern and central Kansas counties seemed poised to have a majority of “no” votes.
Heading into Election Day abortion rights advocates had a slight upper hand in fundraising, fueled by national and regional groups.
Abortion rights advocates raised more money during the race receiving funds from national groups that advocate for abortion rights including the Sixteen Thirty Fund, Planned Parenthood and the American Civil Liberties Union.
Susan B. Anthony Pro-life America invested $1.3 million campaigning for the amendment in Kansas. The Catholic Church in Kansas positioned itself as a primary driver of fundraising and campaigning for the amendment.
“This is the first but certainly not the only opportunity that we’re going to have to get a sense of where the American people are at,” said Mallory Carrol, vice president of communications at Susan B. Anthony Pro-life America. “Outside the context of ballot initiatives when we’re talking to legislators at both the state and federal level is to be the most ambitious as possible as you can for life.”
The amendment’s failure ensures that, at least for now, Kansas will be an access point for abortion in the Great Plains.
Only four clinics operate in the state currently, two in Wichita and two in Overland Park. But the state has long been among the easiest options for Kansas City, Missouri.
Kansas clinics have seen increased call volumes since the U.S. Supreme Court overturned Roe as access to the procedure across the region narrows.
It’s unclear at this point whether Kansas clinics will expand to accommodate more out of state patients.
In a statement Emily Wales, president of Planned Parenthood Great Plains Votes, applauded Kansans for putting “health care over politics.”
“Now, more than ever, our work continues. Planned Parenthood Great Plains has served Kansas for decades and tomorrow, we’ll wake up and do just that — but with the reassurance that people in Kansas will continue to make medical decisions that are best for their health, their lives, and their futures,” Wales said.
But the amendment’s failure will not mark an end to the abortion debate in Kansas.
Though the amendment’s failure is a setback for anti-abortion activists the issue has long held a prominent space in Kansas politics and activists signaled they have no plans to give up. As early as November, they’ll have the opportunity to attempt to oust members of the Supreme Court that declared abortion to be a right.
Ousting judges could be a pathway to overturning the 2019 decision.
“I certainly think there’s a pathway with a different composition of judges,” said Elizabeth Kirk, director for the Center for Law and the Human Person at Catholic University. “It could be overturned if a future court thought that nothing in the 1859 state constitution included a right to abortion.”
Patrick Miller, a University of Kansas political scientist, said that effort could begin as early as November.
The majority of the Kansas Supreme Court is currently made up of justices appointed by Democratic governors. But all but one of those justices is up for retention this year.
“If the amendment fails the other way to ban abortion in Kansas is change who’s on the supreme court,” Miller said. “There’s another opening for conservatives this year.”
If abortion rights advocates sue to overturn Kansas’ anti-abortion laws, as the primary vote yes campaign predicted, years of litigation lay ahead.
Otherwise, lawmakers will likely seek ways around the 2019 decision. And anti-abortion activists could try as soon as January to persuade a supermajority of lawmakers to place the amendment back on the ballot.
State Rep. Brenda Landwehr, a Wichita Republican, said in an interview last month that the state will have to find a way to regulate abortion as much as possible.
“I just hope that people realize that if this amendment does not pass Kansas could be a state that has zero regulations on abortion,” she said.
But abortion rights advocates also say their fight isn’t over.
Sonja Kudulis, 24, of Overland Park, went door to door in the metro last weekend and was intimidated at first. But she said “even people who didn’t agree too much (with us) were happy to talk one-on-one” about the issue.
She will feel “relief and excitement. But let’s celebrate for a couple of days and get back to work,” said the copywriter.
