Kansas vote tees up high stakes test for Supreme Court’s abortion ruling

The Supreme Court’s decision striking down Roe v. Wade will face its first test at the ballot box Tuesday when Kansans vote on an initiative that could determine the fate of abortion access in the state.

The proposal, if it passes, would amend the Kansas constitution to say it contains no right to abortion. Such an outcome would effectively overturn a 2019 ruling by the Kansas Supreme Court, which held that the state constitution contains Roe-like abortion protections.

Tuesday’s vote also carries broader implications for post-Roe America.

In addition to the practical impact on abortion access for Kansans and residents of abortion-restrictive states who might travel there for care, the result may influence the broader trajectory of state laws now emerging across the country.

The vote could also provide the clearest signal yet of how the Supreme Court’s revolutionary abortion decision is landing with the public.

“There are a lot of reasons to watch Kansas on Tuesday,” said Rachel Rebouché, a law professor at Temple University. “If the amendment passes, it will be a statement from Kansas voters that the legislature is now free to ban abortion. … That will have ripple effects for people from Missouri crossing a very close border into Kansas for abortion care.

“If it doesn’t pass, and Kansans vote that the Constitution doesn’t foreclose abortion protection, then that also sends a signal,” she added. “It’s the voice of people telling their state elected officials they are not on board with an abortion ban, and I think that will reverberate through the country.”

The Supreme Court’s overturning of Roe v. Wade in late June ushered in a new era of battle over abortion access. Gone is the constitutional right to abortion that existed for nearly 50 years under Roe. In its place, a complicated patchwork of state laws has begun to emerge.

Conservative states, particularly in the South and Midwest, have moved to ban or curtail abortion. Yet at the same time, a potentially robust check on Republican-led restrictions resides in state constitutions, a source of legal authority that largely flew under the radar for five decades during the Roe era.

Three supreme courts in conservative states have interpreted their state constitution as protecting abortion — Kansas (2019), Montana (1999) and Alaska (1997) — and citizens of those state have retained broad access to abortion as a right, even after Roe was struck down. Florida’s Supreme Court issued a similar ruling in 1989, but since then the court has grown more conservative and the state now bans abortion after 15 weeks of pregnancy.

If the Kansas ballot initiative passes, it would allow the GOP-controlled state legislature to take action to restrict or ban abortion, with likely enough votes to override a veto from the state’s Democratic Gov. Laura Kelly.

Such a move would reverberate well beyond Kansas’s borders. Even before the Supreme Court overturned Roe v. Wade, Kansas had become an abortion sanctuary for residents of more-restrictive states in the Midwest and South. Its importance has only grown now that the procedure is banned in nearby Oklahoma, Texas, Missouri, Arkansas and South Dakota.

“Kansas is key for states in that region because of its 2019 state supreme court decision protecting the right to abortion,” said David Cohen, a law professor at Drexel University. “Even though the Republican-controlled legislature wants to restrict or even ban abortion — and they have the veto-proof majority to do so successfully — as long as that decision remains good law, Kansas will be there for patients needing care.”

“If the ‘yes’ votes win, that will no longer be the case, making it harder for people in the region to get care and putting more pressure on Colorado and Illinois,” he added.

According to Cohen, the conservative makeup of Kansas means that even a narrow win to amend the state constitution would signal strong opposition to the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, which struck down Roe.

“But, there is a good chance the ‘no’ votes win,” he added, “which would be a very strong sign of just how unpopular Dobbs is.”

Legal experts say that other states will be watching what happens in Kansas.

If abortion rights advocates there succeed, it could inspire like-minded residents of other states to attempt similar referenda as a way to enshrine abortion protections in their state constitutions. Conversely, if Kansas unwinds state-constitutional abortion rights, it could give a shot in the arm to abortion opponents elsewhere.

As of now, Kentucky will hold a similar ballot initiative vote in November, and other states may follow. 

Naomi Cahn, a law professor at the University of Virginia, said political activists on both sides of the issue will also be tracking the Kansas vote closely.

“However it comes out,” she said, “it will teach both sides of the abortion debate important lessons on organizing as these issues play out in other states.”