On Aug. 2, Kansas voters will decide whether or not to strip out abortion protections from the state constitution — the first vote on the issue nationally since the U.S. Supreme Court overturned Roe v. Wade last month.
The Value Them Both amendment would change the state constitution so it does not contain a right to abortion. That comes in response to a 2019 Kansas Supreme Court ruling that concluded the right to abortion exists in the state constitution.
The 2019 decision in the case Hodes & Nauser v. Derek Schmidt did not affect most abortion restrictions in Kansas. Rather it struck down a law restricting dilation and evacuation (D&E), a procedure used in some surgical abortions and miscarriage management.
Groups campaigning both for and against the amendment have made misleading claims about what would happen if the amendment succeeds or fails.
Q: What abortion restrictions currently exist in Kansas?
A: Kansas regulates access to abortion in a number of ways:
- Abortion is prohibited after 22 weeks gestation except when pregnancy threatens the life of the woman or would cause substantial and irreversible physical impairment.
- Patients must receive state-directed counseling and information designed to discourage them from receiving an abortion (dubbed “informed consent”), followed by a 24-hour waiting period.
- Patients must receive an ultrasound and be offered the chance to view the image.
- Minors must receive parental consent or petition for judicial bypass.
- Telemedicine abortion care is prohibited — patients must go in-person to one of the state’s four abortion clinics, located in Wichita and Overland Park. They cannot be prescribed an abortion pill over a video consultation.
- Abortion for the purpose of sex selection is prohibited.
- Public funding for abortion is limited to cases of rape, incest or where the woman’s life is in danger.
- Private insurance plans may only cover abortion to protect the woman’s life.
- Health insurance plans offered in the state health exchange may only cover abortion to protect the woman’s life.
Existing regulations place Kansas among the more restrictive states when it comes to abortion, according to Elizabeth Nash, a state policy analyst at the Guttmacher Institute, a research group that supports abortion rights.
“What is happening in Kansas really isn't quite how it’s being portrayed by abortion opponents because certainly there are lots of requirements that have to be met by providers,” Nash said.
While Kansas has become a destination for those seeking abortions from out-of-state, Nash said that’s because it’s close to states with even tighter abortion restrictions — not because of its lenient restrictions.
Q: If the amendment fails, would existing abortion restrictions disappear?
A: Likely not — with a few exceptions.
Groups in favor of the amendment have claimed it is the only way to preserve existing regulations on abortions, like the 22-week gestation limit and the parental notification requirements for minors.
In reality, there would be no immediate impact to existing abortion restrictions if the amendment fails. Restrictions could conceivably be challenged in court — just as they could have been challenged at any point since the state Supreme Court’s 2019 ruling — but legal experts say it’s unlikely most would be.
“Requirements of parental consent are really not in danger. The ban on abortions based on sex would probably still survive. And the restrictions on abortions after 22 weeks, subject to an exception for the life and health of the mother, would also likely be valid,” said Richard Levy, a constitutional law professor at the University of Kansas.
Levy said what’s less certain is whether state-mandated counseling and waiting period requirements would survive, if challenged and the amendment fails. He said the state’s ban on telehealth abortion care could also be vulnerable.
But KU law professor Stephen McAllister, a former Trump-appointed U.S. Attorney for Kansas and a former clerk for conservative U.S. Supreme Court Justice Clarence Thomas, said there’s no indication that abortion providers would challenge most of the existing regulations.
“The fact that they have not done so for three years and have simply complied with them makes me wonder why they would at this point,” McAllister said.
Q: If the amendment fails, would Kansas permit “taxpayer-funded abortions”?
A: It’s very unlikely.
Proponents of the amendment have said it would prevent “taxpayer-funded abortion” — but a prohibition on public funding of abortion is already written into state law.
“Any notion that taxpayers would be funding abortions — that's up to the Legislature,” McAllister said. “And I just don't see them, in a million years, voting to do that.”
Kansas is already one of the most restrictive states when it comes to insurance coverage of abortion, the Guttmacher Institute’s Nash said. It’s one of only 11 states to ban private insurance coverage of abortion — with exceptions for life endangerment of the woman, but without exceptions for rape, incest or severe health endangerment. Patients can choose to purchase additional abortion coverage.
Q: If the amendment succeeds, will Kansas ban abortions?
A: Maybe, but not immediately – with a key exception.
Groups opposing the amendment have claimed that it would result in a total ban on abortions. In reality, the amendment itself would not ban abortion — but it would allow legislators to enact bans in the future. That could happen at the next legislative session beginning in January, unless a special session is called earlier.
But there would be a few immediate changes to abortion rights in Kansas if the amendment succeeds — notably concerning dilation and evacuation abortions.
Both Levy and McAllister would expect providers to stop offering dilation and evacuation abortions soon afterward. That’s because the amendment would nullify the Kansas Supreme Court’s 2019 decision striking down a ban on the procedure — meaning the ban would again be enforceable.
Longer term, anti-abortion lawmakers would likely move to ban abortion in most or all cases if the amendment succeeds — in contrast to Value Them Both campaign literature emphasizing an intention to only restrict late-term abortions and protect “common-sense laws” like parental consent rules.
Last month, a regional director of the Value Them Both Coalition told supporters that the group has legislation ready that would ban nearly all abortions, according to audio recently obtained by the Kansas Reflector. Bill HB 2746 would criminalize abortions beginning at fertilization, with no exceptions for rape or incest — only to save the life of the mother.
McAllister said he expects the Republican-controlled legislature to propose and pass a bill banning abortion in most cases at the next legislative session.
“It is not an effort to allow us to have reasonable debate about what sort of regulations we might have,” he said of the vote on the amendment. “It’s an up or down vote on whether we have abortion rights in Kansas or we don’t.
“The only question in my mind would be: Does it have exceptions … for medical emergencies … for rape or incest? And then I wouldn't be surprised if they also propose things like making it a crime to aid or assist someone in obtaining an abortion, or helping someone travel out of state to obtain an abortion.”
If the amendment passes, the ability of abortion opponents in the Legislature to ban abortion will depend in part on the balance of power in state government following midterm elections in November.
If Gov. Laura Kelly, a Democrat and supporter of abortion rights, wins reelection, legislators would need a two-thirds majority in both chambers to override a likely veto. If Kelly’s Republican opponent Derek Schmidt is in the governor’s office, the Legislature may only need a simple majority to pass a ban.
There are also questions about the extent to which Republican legislators are prepared to restrict abortion in a state where only a small percentage of voters support a total ban on abortion, according to a recent poll.
“It will matter who those Republicans are that are elected to the Legislature — because different Republicans are going to have different ideas about abortion,” said Wichita State University political science professor Neal Allen. “It's not clear that a total ban will have the votes to pass.”
Correction: This story originally mischaracterized Bill HB 2746. The bill would include exceptions to save the life of the mother in cases of ectopic pregnancy only.
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