By DYLAN LYSEN
Kansas News Service
LAWRENCE — Voters made beyond clear that they didn’t want to give the Kansas Legislature more power to restrict abortion.
But the state’s lawmakers spent the last generation enacting ever-tighter restrictions. And their ranks are loaded with people who want to go even further.
Now, despite voters declaring by a nearly 60-40 margin that they didn’t want to change the Kansas Constitution in a way that would have opened the door to an outright ban, legislators could still test just how far they can restrict abortion.
“There is a right to abortion in Kansas, for now, (but) the anti-abortion movement is going to try to chip away at abortion rights as the anti-abortion movement has been doing for decades,” said Greer Donley, a Kansas native and abortion law expert at the University of Pittsburgh.
Certainly elections matter. But when voters choose who they want representing them in every Kansas House district in the state this fall, they’ll have relatively little choice.
Nearly half the people running for the House face no opponent. Some of those Republican seats even represent swing districts where Democrats have often won in the past. That will make it hard for any abortion rights wave to remake the Legislature.
So even districts that voted against a constitutional amendment to strip abortion rights from the Kansas Constitution will ultimately send conservatives to represent them in Topeka.
Nathaniel Birkhead, a political scientist at Kansas State University, said the Aug. 2 election shows a mismatch between Kansas voters and their representatives. While a majority of Kansans clearly support some level of abortion rights, they have elected lawmakers who don’t.
Gerrymandering that practically locks down a district for one party or the other, he said, could be a factor.
“As a consequence,” Birkhead said, “we will continue to see mismatches like these, where legislators are promoting ideas and issues that may not really align with … what the citizens want.”
Consider Crawford County, the home of Pittsburg State University in southeast Kansas. In recent years, the Democratic and Republican parties have traded off ownership of their seat in the Kansas House.
But this fall, Pittsburg’s Republican state Rep. Chuck Smith will cruise to reelection. Nobody ran against him. Smith’s county rejected the constitutional amendment by a 10% margin. But he wants tighter restrictions.
“No matter how I vote, I'm voting with (only) 50% of my constituents,” Smith said. “But you don't change your values.”
It also shows that a decisive election on one of the most contentious issues in the state over the last three decades is not going to bring the fight to an end. Kansans for Life, the largest anti-abortion group in the state, characterized the vote as only a temporary setback.
Political mismatch
Kansas Republicans could pass more restrictive abortion laws, even if incumbent Democratic Gov. Laura Kelly, who supports abortion rights, wins reelection this fall over Republican challenger Derek Schmidt.
Republicans will likely keep their supermajority in the Kansas Legislature and the power override Kelly’s veto.
While every seat in the Kansas House was up for grabs, 55 of the 125 seats only have a single candidate running. That vast majority of those candidates — 36 of them — are Republicans. That’s more than 40% of the seats the party would need to retain to keep its supermajority in the chamber.
Meanwhile, 22 of those unchallenged Republicans — more than half — are set to represent districts that include part of counties that rejected the amendment on abortion. Those seats alone make up the total difference between a simple majority and a supermajority in the Kansas House.
Birkhead said that leads to the mismatch, where lawmakers hold views that don’t align with most of their constituents. Without an opponent, those lawmakers won’t risk their seats by passing more abortion restrictions.
“If you fail to adhere to this sort of medium in your district,” he said, “there's no sanction because you're not going to lose your election.”
Smith is one of those lawmakers. Over the last 10 years, his district has routinely switched hands between Republicans and Democrats. But he faces no challenger from either party this year. That’s after he voted in 2021 to put the state constitutional amendment on the ballot that his constituency voted against.
Still, Smith said he still wants some more restrictions on abortions. But what restrictions lawmakers could pursue may need to be scaled back.
New restrictions
The election made one thing clear: abortion rights will continue in Kansas. What it doesn’t make clear is what exactly those rights are. Currently, state law bans abortion after 22 weeks.
Smith, for instance, said he “could live with” a 15-week ban. Some states, like Florida and Mississippi, have installed 15-week bans. The challenge to Mississippi’s ban was the catalyst for overturning Roe v. Wade.
Donley said Republican lawmakers could use a 15-week ban to test the Kansas Supreme Court’s ruling by passing such a law and trying to defend it in court. But with the way the state’s high court ruled in 2019, Donley said it’s unlikely it would then allow a 15-week ban to go into effect.
Yet, the court could allow a softer, 20-week law to go into effect, she said.
“I could imagine a court being more likely to entertain that law than a 15-week law,” Donley said.
Reshaping the court
Conservatives and anti-abortion activists still have another option to try to remove the right to an abortion from the state. They could push voters to remove Kansas Supreme Court justices through retention elections, allowing for Republican leaders to reshape the court with their ideology on abortion.
That would be similar to what happened at the federal level when former President Donald Trump nominated three conservative justices to the U.S. Supreme Court. It led to the overturning of the decades-old precedent, Roe v. Wade, that provided abortion rights nationwide.
That’s a fear that has already been expressed by abortion rights activists.
Ashley All of Kansas for Constitutional Freedom, the campaign that worked to reject the constitutional amendment, said the day after the election that she expected conservatives to shift their focus to the state supreme court.
Six of the court’s seven justices will be up for retention in the November general election. If some of the justices are removed, and a Republican governor is able to put more conservatives in the court, the right to an abortion could be challenged again.
“Even though the entire state voted and essentially said no,” Donley said, “if the court changes its structure, they could overrule that previous holding and Kansas would lose the right to abortion.”
Dylan Lysen reports on politics for the Kansas News Service. You can follow him on Twitter @DylanLysen or email him at [email protected].