Why Kansas is giving abortion rights advocates a reason to be optimistic in November

Kansas voters are giving abortion rights advocates and Democrats reason to be hopeful. When Tuesday night’s votes came in, it looked like they confirmed what the groups have been saying all along: Americans broadly support abortion rights.

Nearly 60 percent of voters in the Sunflower State rejected a state constitutional amendment on Tuesday that would have given the state legislature more power to regulate access to abortion, marking the first time Americans were asked to weigh in on abortion rights after the Supreme Court overturned Roe v. Wade.

“In the first election since [the ruling] where abortion was front and center, the people of a state that hasn’t voted for a Democrat for President since 1964 emphatically endorsed a right to abortion. This should send shockwaves through politics at every level,” David Cohen, a law professor at Drexel University’s Thomas R. Kline School of Law, said in an email following the Kansas vote.

But abortion rights advocates see Kansas as only the first test of many, and they’re looking to expand on that success with referendums in states such as Kentucky, Michigan and Montana.

The Supreme Court’s overruling of Roe in late June ended a nearly half-century legal regime in which abortion was a federally protected right up to around 24 weeks. In its place, a complex patchwork of state laws has begun to emerge, with conservatives states, particularly in the South and Midwest, moving swiftly in recent weeks to impose new abortion restrictions and even near-total bans.

But one potentially robust check on these Republican-led efforts resides in state constitutions, a source of law that was largely overlooked in the nearly five decades when Roe had tied state lawmakers’ hands. Abortion rights advocates are now urging courts to interpret state constitutions as containing Roe-like protections, and ballot initiatives — another avenue for altering state constitutions — are likely to figure more prominently in the new era of battles over abortion rights. 

In Kentucky, residents will be asked to weigh in on a state constitutional amendment that says, “Nothing in this Constitution shall be construed to secure or protect a right to abortion or require the funding of abortion.”

In Michigan, residents will vote on a ballot measure that would amend the state constitution, protecting the right to make choices on reproductive issues such as contraception and abortion.

Over in Montana, there’s also a ballot measure that would require that infants born following an abortion attempt to be provided medical care.

Abortion rights groups and Democratic strategists pointed out that there’s only so much that can be gleaned from Kansas, noting that the ballot measures in states such as Montana and Kentucky are still local elections. But some are feeling hopeful.

“I think there is no terrain that is off the table for us on these issues. I think we have to fight in all 50 states. We have to be fighting bans, whether they’re in the legislature or a ballot initiative,” Mini Timmaraju, president of NARAL Pro-Choice America, said.

“And we’ve got to be engaging and mobilizing American voters directly in a way, you know, that is really clear. That this isn’t about, you know, partisanship. This is about your ability to decide when, if, how to have your own family, have children,” she added.

Two dozen states allow voters to place initiatives directly on the ballot without involvement from lawmakers. This mechanism may make it easier for abortion rights supporters in GOP-held states to put referenda before voters, with campaigns that could defy typical ideological silos to reflect regional or local political attitudes.

According to Rachel Rebouché, a law professor at Temple University, abortion rights activists in reliably red Kansas used messaging that appealed to small-government sensibilities, a political principle typically associated with conservatives.

“In Kansas, it’s really interesting that there seemed to be messages around getting the state government out of your business — your autonomy arguments,” she said. “So I think they’re both ways in which what happened in Kansas will happen in other states, but I for one am very curious about how those messages will be crafted for the particular political and cultural context of those places.”

Democratic strategist Basil Smikle said he predicted that the defense of abortion rights in the ballot measures slated to happen in Montana and Michigan would prevail, but he said it remains less clear how the abortion ballot measure might play out in Kentucky.

“Kentucky might be a little more difficult. But I suspect … in two other states that reproductive rights will prevail because I just think that women in those states, regardless of who they elect to support, regardless of who they elect to determine how much they should pay in taxes or education policy … this will impact multiple generations of women,” he said.

Christen Pollo, a spokeswoman for Citizens to Support MI Women & Children, a group opposed to Michigan’s ballot initiative, predicted that voters would reject the Michigan ballot initiative, arguing that the language is confusing, and said comparisons could not be made between the ballot measures in Kansas and Michigan.

“Those conversations about what our landscape should be here in Michigan are really important. I think that’s why we elect representatives to make those decisions with us,” she said. 

“But this abortion amendment takes those important conversations off the table because it repeals all regulation and all restrictions on abortion and many other things,” she claimed. 

Timmaraju said she believed Michigan voters would understand the ballot measure text, saying she did not know “that there’s anything in the Michigan ballot initiative that is too complicated or too confusing.”

Still, the voter turnout in Kansas is giving Democrats and abortion rights groups hope that the number of voters seen on Tuesday could translate well for their party. 

“This victory was fueled by a surge of young folks and women who registered to vote following the court’s hearing. And this could be a signal of what’s to come. In November, contests to defend abortion rights [are] on the ballot in Pennsylvania, Wisconsin and in Michigan,” Center for American Progress Action Fund CEO Patrick Gaspard told reporters during a press call.  

Some Republicans are not buying the idea that the Supreme Court’s ruling will boost Democrats’ hopes, including in state legislative races. 

A spokesperson for the Republican State Leadership Committee referred The Hill to polling the organization released in June, conducted by Cygnal, when The Hill asked how voters are interpreting the issue of abortion when it comes to electing candidates.

The polling showed that, at the time, Republican state legislative candidates barely edged past Democratic candidates in a generic ballot race and that abortion was not considered a main driving issue in November. 

Jessica Post, president of the Democratic Legislative Campaign Committee, argued, however, that abortion rights are a “critical issue” and pointed to the Kansas vote as proof that the issue of abortion mobilized Democrats and independents.

But Democrats suggest not to underestimate voters’ motivations when it comes to the issue of abortion, saying it’s likely to turn out more voters on either side. 

“Though Democratic women will walk over hot coals to vote against abortion bans, it’s bringing GOP and Independent women out of the woodwork as well,” Democratic strategist Christy Setzer said in an email.

Anti-abortion groups, for their part, are paying attention.

“The pro-life movement’s call to politics and policy did not end with the Dobbs decision, rather, because of that victory we must work exponentially harder to achieve and maintain protections for unborn children and their mothers,” Mallory Carroll, spokeswoman for Susan B. Anthony Pro-Life America, said in a statement following the Kansas vote. 

Cohen, of Drexel University, says the lesson in Kansas is how important it’ll be for Democrats to drive home messaging on abortion rights. 

“Democrats everywhere need to learn from this that abortion should be front and center in the midterm elections,” he said. “Republicans need to rethink how extreme they want to be on this issue. And in the 24 states that allow ballot initiatives with no involvement from the state legislature, the people need to get moving to put abortion on the ballot as soon as possible.”

Julia Manchester contributed to this report.