The 2022 Kansas abortion referendum was a rejected
legislatively referred constitutional amendment
A legislative referral (or legislative referendum) is a referendum in which a legislature puts proposed legislation up for popular vote. This may either be voluntarily or, as is the case in many countries for a constitutional amendment, as a man ...
to the
Kansas Constitution The Wyandotte Constitution is the constitution of the U.S. state of Kansas.
Background
The Kansas Territory was created in 1854. The largest issue by far in territorial Kansas was whether slavery was to be permitted or prohibited; aside from the m ...
that appeared on the ballot on August 2, 2022, alongside
primary election
Primary elections, or direct primary are a voting process by which voters can indicate their preference for their party's candidate, or a candidate in general, in an upcoming general election, local election, or by-election. Depending on the ...
s for statewide offices, with
early voting
Early voting, also called advance polling or pre-poll voting, is a convenience voting process by which voters in a public election can vote before a scheduled election day. Early voting can take place remotely, such as via postal voting, or in ...
from July 13. If enacted, the amendment would have declared that the Kansas Constitution does not guarantee a
right to abortion
Abortion-rights movements, also referred to as Pro-choice (term), pro-choice movements, advocate for the right to have Abortion law, legal access to induced abortion services including elective abortion. They seek to represent and support wome ...
, given the Kansas state government power to prosecute individuals involved in abortions, and further declared that the Kansas government is not required to fund abortions.
The language of the bill — in which a "yes" vote would remove constitutional protections for abortion in all instances — was described as being intentionally misleading, due to the unpopularity of blanket restrictions on abortion. It was put on the ballot through a house resolution passed in early 2021 with the goal of superseding a decision by the
Kansas Supreme Court
The Kansas Supreme Court is the highest judicial authority in the state of Kansas. Composed of seven justices, led by Chief Justice Marla Luckert, the court supervises the legal profession, administers the judicial branch, and serves as the st ...
in 2019 that the state constitution protected a woman's access to abortion. Being the first abortion-related constitutional amendment on the ballot since the
Supreme Court of the United States
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
overturned the landmark ''
Roe v. Wade
''Roe v. Wade'', 410 U.S. 113 (1973),. was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States conferred the right to have an abortion. The decision struck down many federal and s ...
'' decision in ''
Dobbs v. Jackson Women's Health Organization
''Dobbs v. Jackson Women's Health Organization'', , is a landmark decision of the U.S. Supreme Court in which the court held that the Constitution of the United States does not confer a right to abortion. The court's decision overruled both ''R ...
'', it was considered a
bellwether
A bellwether is a leader or an indicator of trends.bellwether " ''Cambridge Dictionary''. Ret ...
over Americans' view on abortion. The Kansas referendum was also viewed as significant because neighboring states (such as
Missouri
Missouri is a U.S. state, state in the Midwestern United States, Midwestern region of the United States. Ranking List of U.S. states and territories by area, 21st in land area, it is bordered by eight states (tied for the most with Tennessee ...
and
Oklahoma
Oklahoma (; Choctaw language, Choctaw: ; chr, ᎣᎧᎳᎰᎹ, ''Okalahoma'' ) is a U.S. state, state in the South Central United States, South Central region of the United States, bordered by Texas on the south and west, Kansas on the nor ...
) are Republican-leaning and are more restrictive on abortion access. The referendum was the first of five abortion-related ballot measures in the U.S. in 2022: the others were held on
Election Day
Election day or polling day is the day on which general elections are held. In many countries, general elections are always held on a Saturday or Sunday, to enable as many voters as possible to participate; while in other countries elections ar ...
for the general election (November 8) in
California
California is a U.S. state, state in the Western United States, located along the West Coast of the United States, Pacific Coast. With nearly 39.2million residents across a total area of approximately , it is the List of states and territori ...
,
Kentucky
Kentucky ( , ), officially the Commonwealth of Kentucky, is a state in the Southeastern region of the United States and one of the states of the Upper South. It borders Illinois, Indiana, and Ohio to the north; West Virginia and Virginia to ...
,
Michigan
Michigan () is a state in the Great Lakes region of the upper Midwestern United States. With a population of nearly 10.12 million and an area of nearly , Michigan is the 10th-largest state by population, the 11th-largest by area, and the ...
,
Montana
Montana () is a state in the Mountain West division of the Western United States. It is bordered by Idaho to the west, North Dakota and South Dakota to the east, Wyoming to the south, and the Canadian provinces of Alberta, British Columbi ...
, and
Vermont
Vermont () is a state in the northeast New England region of the United States. Vermont is bordered by the states of Massachusetts to the south, New Hampshire to the east, and New York to the west, and the Canadian province of Quebec to ...
. Because of this, the referendum has been widely covered by media outlets worldwide.
Supporters called their proposal the Value Them Both Amendment,Jason Tidd What do 'yes' and 'no' votes mean for Kansas' Value Them Both anti-abortion amendment? ''Topeka Capital-Journal'' (July 24, 2022). and it was referred to as such in the "explanatory statement" as such on the ballot (on which the referendum appeared under the title "Question Submitted: Constitutional Amendment"). The referendum was also referred to as Amendment 2. The leading organization in favor of the measure's passage was the Value Them Both Association, an umbrella group of anti-abortion organizations. The Catholic dioceses in Kansas and many
evangelical Christian
Evangelicalism (), also called evangelical Christianity or evangelical Protestantism, is a worldwide interdenominational movement within Protestant Christianity that affirms the centrality of being " born again", in which an individual exper ...
groups also supported the measure. The leading group against the measure was ''Kansans for Constitutional Freedom''. Its passage would also be detrimental to the future of abortion in Kansas as Republicans could use its two-thirds supermajority to override a veto by
Laura Kelly
Laura Jeanne Kelly (born January 24, 1950)"Laura Kelly," ''Kansapedia,'' , the Democratic
governor of Kansas
A governor is an administrative leader and head of a polity or political region, ranking under the head of state and in some cases, such as governors-general, as the head of state's official representative. Depending on the type of political r ...
, of an abortion ban or restriction that would be illegal under the 2019 state supreme court case. Saying that she opposed legislation that "interfered with a oman's freedom to make "reproductive healthcare decisions
ith
The Ith () is a ridge in Germany's Central Uplands which is up to 439 m high. It lies about 40 km southwest of Hanover and, at 22 kilometres, is the longest line of crags in North Germany.
Geography
Location
The Ith is immediatel ...
Derek Schmidt
Derek Larkin Schmidt (born January 23, 1968) is an American lawyer and politician who has been the Kansas Attorney General since 2011.
A Republican, Schmidt was first elected to office serving in the Kansas Senate, where he represented the 15 ...
, the Republican
Attorney General
In most common law jurisdictions, the attorney general or attorney-general (sometimes abbreviated AG or Atty.-Gen) is the main legal advisor to the government. The plural is attorneys general.
In some jurisdictions, attorneys general also have exec ...
who praised the overturn of ''Roe v. Wade'' and defended the state in the state court case. Had the ballot measure passed, and had Schmidt won the election, Republicans would theoretically only need a simple majority to pass such legislation.
The amendment was ultimately defeated by an 18-point margin, which was partially attributed to higher-than-usual turnout and an increase in
voter registration
In electoral systems, voter registration (or enrollment) is the requirement that a person otherwise eligible to vote must register (or enroll) on an electoral roll, which is usually a prerequisite for being entitled or permitted to vote.
The ru ...
in the run-up to the referendum.
Background
file:Abortion access protections by US state.svg, 350px, Kansas is one of six states (including Alaska, Florida, Massachusetts, Minnesota and Montana) whose Supreme Court has recognized the right to abortion under its state Constitution. Iowa formerly recognized such a right, but Iowa Supreme Court, its Supreme Court overruled this precedent in 2022.
In 2015, the state legislature passed the Kansas Unborn Child Protection from Dismemberment Abortion Act which would prohibit
dilation and evacuation
Dilation and evacuation (D&E) is the dilation of the cervix and surgical evacuation of the uterus (potentially including the fetus, placenta and other tissue) after the first trimester of pregnancy. It is a method of abortion as well as a common ...
abortions, which accounted for 9% of abortions in Kansas, with few exceptions, such as to preserve the life of the mother. In response, two abortion providers in
Overland Park
Overland Park ( ) is the second-most populous city in the U.S. state of Kansas. Located in Johnson County, Kansas, it is one of four principal cities in the Kansas City metropolitan area and the most populous suburb of Kansas City, Missouri. ...
and others sued the state in the Shawnee County District Court, arguing that sections 1 and 2 of the constitution's Bill of Rights recognized a "fundamental right to abortion". The court agreed, blocking the law from taking into effect. As such, the
state attorney general
The state attorney general in each of the 50 U.S. states, of the federal district, or of any of the territories is the chief legal advisor to the state government and the state's chief law enforcement officer. In some states, the attorney gener ...
appealed the case, titled ''Hodes & Nauser v. Derek Schmidt'', to the
Kansas Court of Appeals
The Kansas Court of Appeals is the intermediate-level appellate court for the U.S. state of Kansas.
History
The Kansas Legislature created the first Kansas Court of Appeals in 1895, to help the Kansas Supreme Court with an increasingly heavy casel ...
. It issued a 7–7 decision in January 2016, effectively upholding the district court's decision. The state then appealed again to the state supreme court, with
oral argument
Oral arguments are spoken presentations to a judge or appellate court by a lawyer (or parties when representing themselves) of the legal reasons why they should prevail. Oral argument at the appellate level accompanies written briefs, which also a ...
s heard in March 2017. It argued that the state constitution couldn't protect abortion rights since abortion was mostly illegal when it was drafted in 1859 and that physicians had other ways to perform second-trimester abortions. The court published its 6–1 ruling to affirm the lower courts' judgment on April 26, 2019, which stated that the first section of the state bill of rights in which "all men are possessed of equal and inalienable natural rights" include "a woman's right to make decisions about her body". The decision also stated that the right to abortion may only be infringed if "the State has a compelling interest and has narrowly tailored its actions to that interest".
The proposed amendment was first introduced in the Legislature as House Concurrent Resolution 5019 and Senate Concurrent Resolution 1613 in mid-January 2020, nearly nine months after the ruling, which would be overruled by the amendment. Its title of "Value Them Both" refers to the amendment's opening line which laid out the supposed rationale behind it, i.e. to "value both women and children". It was modeled after a similar amendment to the
Constitution of Tennessee
The Constitution of the State of Tennessee defines the form, structure, activities, character, and fundamental rules (and means for changing them) of the U.S. State of Tennessee.
The original constitution of Tennessee came into effect on June 1, ...
which was also a reaction to a similar ruling by their
Supreme Court
A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
. After vigorous protests from groups supporting and opposing the proposal, it failed in a vote in the
Kansas House of Representatives
The Kansas House of Representatives is the lower house of the legislature of the U.S. state of Kansas. Composed of 125 state representatives from districts with roughly equal populations of at least 19,000, its members are responsible for craftin ...
due to four Republicans voting against it. State representative Don Hineman who voted against said that the statewide vote should be held in November and that his vote was not in contradiction to his "staunch pro-life record".
Almost exactly a year after its first introduction, the proposal was reintroduced as House Concurrent Resolution 5003. Several amendments were introduced to change the dates of which the referendum would be held. One of them was put forward by Representative Vic Miller to move the date to August 2021, arguing that "5,460 babies will perish" between 2021 and 2022, while another was put forward by Democrats to move the date to coincide with general elections on Election Day 2022 as there were concerns that not doing so would suppress turnout and benefit the proposal's supporters, although the recent ''Dobbs v. Jackson Women's Health Organization'' case might also energize
pro-choice
Abortion-rights movements, also referred to as pro-choice movements, advocate for the right to have legal access to induced abortion services including elective abortion. They seek to represent and support women who wish to terminate their pre ...
voters. Ultimately, none of these amendments were successful and in late January 2021, the resolution passed both houses on party-line votes, surpassing the two-thirds threshold needed for a constitutional amendment to be put before the voters.
Content
The proposal would add a section to the Kansas Bill of Rights as follows:
§ 22. Regulation of abortion.
Because Kansans value both women and children, the constitution of the state of Kansas does not require government funding of abortion and does not create or secure a right to abortion. To the extent permitted by the constitution of the United States, the people, through their elected state representatives and state senators, may pass laws regarding abortion, including, but not limited to, laws that account for circumstances of pregnancy resulting from rape or incest, or circumstances of necessity to save the life of the mother.
In addition to the proposed amendment, the house resolution also added an explanatory statement to the ballot paper as follows:
The Value Them Both Amendment would affirm there is no Kansas constitutional right to abortion or to require the government funding of abortion, and would reserve to the people of Kansas, through their elected state legislators, the right to pass laws to regulate abortion, including, but not limited to, in circumstances of pregnancy resulting from rape or incest, or when necessary to save the life of the mother.
A vote for the Value Them Both Amendment would affirm there is no Kansas constitutional right to abortion or to require the government funding of abortion, and would reserve to the people of Kansas, through their elected state legislators, the right to pass laws to regulate abortion.
A vote against the Value Them Both Amendment would make no changes to the constitution of the state of Kansas, and could restrict the people, through their elected state legislators, from regulating abortion by leaving in place the recently recognized right to abortion.
If enacted, the amendment stated that the Kansas Constitution does not guarantee a
right to abortion
Abortion-rights movements, also referred to as Pro-choice (term), pro-choice movements, advocate for the right to have Abortion law, legal access to induced abortion services including elective abortion. They seek to represent and support wome ...
incest
Incest ( ) is human sexual activity between family members or close relatives. This typically includes sexual activity between people in consanguinity (blood relations), and sometimes those related by affinity (marriage or stepfamily), adoption ...
, or rape, and would give the Kansas state government the power to prosecute pregnant individuals and doctors involved in abortions, including those that arose out of circumstances of "rape or incest, or circumstances of necessity to save the life of the mother." The bill additionally stated that the government of Kansas is not required to fund abortion.
Arguments
In an effort to appeal to the broader electorate, both sides of the debate have tried to paint their preferred choice as more moderate than the opposite side.
Supporters of the "yes" vote have said that the amendment would give voters the ability "to weigh in directly on the ballot so that we can pass bortionlaws". They have also claimed that the amendment would allow for "common sense abortion limits", and said that the ''Hodes & Nauser v. Schmidt'' case, which protected the right to abortion, needed to be overruled, since it could be used to nullify existing abortion restrictions in Kansas, such as a ban on most abortions after 22 weeks and a requirement for
parental consent
Parental consent laws (also known as parental involvement laws) in some countries require that one or more parents consent to or be notified before their minor child can legally engage in certain activities.
Parental consent may refer to:
*A pa ...
.
Meanwhile, supporters of the "no" vote", i.e. opponents of the amendment, and legal experts have said that, while the language of the amendment did not specifically reference an abortion ban, state legislators would be empowered to pass such legislation and would likely do so. They pointed to similar bills that have already been considered and introduced in the Legislature, such as HB 2746, introduced in March 2022, which would ban all abortions except "when necessary to preserve the life of the pregnant woman" without exceptions for rape and incest and would make performing abortions a level one felony. State representative Lindsay Vaughn also added that the right to abortion is a non-negotiable
human right
Human rights are moral principles or normsJames Nickel, with assistance from Thomas Pogge, M.B.E. Smith, and Leif Wenar, 13 December 2013, Stanford Encyclopedia of PhilosophyHuman Rights Retrieved 14 August 2014 for certain standards of hu ...
that should not be up for a popular vote.
Many commentators, on both sides of the issue, brought up the
history of Kansas
The U.S. state of Kansas, located on the eastern edge of the Great Plains, was the home of nomadic Native American tribes who hunted the vast herds of bison (often called "buffalo"). In around 1450 AD, the Wichita People founded the great city ...
slavery in the United States
The legal institution of human chattel slavery, comprising the enslavement primarily of Africans and African Americans, was prevalent in the United States of America from its founding in 1776 until 1865, predominantly in the South. Sl ...
.
Campaign spending
Opponents and proponents of the measure collectively spent $22 million on the referendum campaign. Abortion rights groups spent $11.3 million, while abortion opponents spent almost $11.1 million.Sareen Habeshian Opponents, advocates spent $22 million on Kansas abortion vote ''Axios'' (August 19, 2022).John Hanna & Heather Hollingsworth Spielberg among donors in $22M Kansas campaign on abortion Associated Press (August 19, 2022). Of the funding in support of the proposed amendment, more than $4.3 million were contributed by Roman Catholic dioceses and the Kansas Catholic Conference. Kansans for Life reported spending $2.7 million (split between its own efforts and its contribution to the main "vote yes" organization); and
Susan B. Anthony Pro-Life America
Susan B. Anthony Pro-Life America (formerly Susan B. Anthony List) is a 501(c)(4) non-profit organization that seeks to reduce and ultimately end abortion in the U.S. by supporting anti-abortion politicians, primarily women, through its SBA List ...
reported spending $1.4 million. Of the funding opposing the proposed amendment,
Planned Parenthood
The Planned Parenthood Federation of America, Inc. (PPFA), or simply Planned Parenthood, is a nonprofit organization that provides reproductive health care in the United States and globally. It is a tax-exempt corporation under Internal Reve ...
affiliates and other abortion-rights organizations contributed nearly $2.3 million; approximately $1.5 million was contributed by Sixteen Thirty Fund, and $1.25 million was contributed by
Michael Bloomberg
Michael Rubens Bloomberg (born February 14, 1942) is an American businessman, politician, philanthropist, and author. He is the majority owner, co-founder and CEO of Bloomberg L.P. He was Mayor of New York City from 2002 to 2013, and was a ca ...
.
Polling
Results
Aftermath
Reactions
Roger Marshall, the US senator for Kansas, criticized the results after the vote, citing his Christian faith:
While I don’t have an answer, I do know that God works all things for good for those who trust him. I want to thank everybody in the pro-life community who worked so hard to get this amendment passed. Tonight, we must still go to bed with faith and hope, for tomorrow we must be as dedicated to the sanctity of life, and to the fight to protect the lives of moms and unborn babies. Each of us will have to pray and look in our hearts to see what’s next.
Meanwhile, on the same day as the referendum, President Joe Biden released a statement praising the measure's defeat while criticizing the US Supreme Court for overturning ''Roe v. Wade'', saying:
The Supreme Court’s extreme decision to overturn ''Roe v. Wade'' put women’s health and lives at risk. Tonight, the American people had something to say about it. Voters in Kansas turned out in record numbers to reject extreme efforts to amend the state constitution to take away a woman’s right to choose and open the door for a state-wide ban. This vote makes clear what we know: the majority of Americans agree that women should have access to abortion and should have the right to make their own health care decisions.
In response to the referendum results, several national Democratic Party leaders including Senators
Elizabeth Warren
Elizabeth Ann Warren ( née Herring; born June 22, 1949) is an American politician and former law professor who is the senior United States senator from Massachusetts, serving since 2013. A member of the Democratic Party and regarded as a ...
and
Brian Schatz
Brian Emanuel Schatz (; born October 20, 1972) is an American educator and politician serving as the senior United States senator from Hawaii, a seat he has held since 2012. A member of the Democratic Party, Schatz served in the Hawaii House o ...
argued that the party's candidates should emphasize reproductive rights in the 2022 midterm elections.
Analysis
Analysts noted that the "No" option outperformed Biden's vote share in the
2020 presidential election
This national electoral calendar for 2020 lists the national/federal elections held in 2020 in all sovereign states and their dependent territories. By-elections are excluded, though national referendums are included.
January
*5 January:
**C ...
in every county, and won in several suburban counties where Trump had won a majority in 2020.
There had been initial fears that holding a referendum alongside statewide primaries (rather than the general election) would suppress turnout, but this ultimately did not happen. ''
The Topeka Capital-Journal
''The Topeka Capital-Journal'' is a daily newspaper in Topeka, Kansas, owned by Gannett.
History
The paper was formed following numerous name changes and mergers, including the merger of ''The Topeka Daily Capital'' and ''The Topeka State Jour ...
'' reported that Democratic primaries were less contentious and many Democratic candidates ran unopposed, meaning that Democrats would otherwise be unlikely to vote in the primaries. The turnout of nearly 50% exceeded a 36% turnout predicted by Secretary of State
Scott Schwab
Scott Joseph Schwab (born July 9, 1972) is an American politician serving as the 32nd Secretary of State of Kansas. He served as a member of the Kansas House of Representatives, representing the 49th district, from 2009 to 2019. He also served as ...
a few days before the referendum, extrapolating from factors such as past turnout data. He also acknowledged that the ballot measure "has increased voter interest in the election." The turnout rate was nearly double that in the 2018 primary election and nearly two-thirds of that in the 2020 general election
Voter turnout
In political science, voter turnout is the participation rate (often defined as those who cast a ballot) of a given election. This can be the percentage of registered voters, eligible voters, or all voting-age people. According to Stanford Unive ...
set a Kansas record for primary elections, with the referendum increasing
political mobilization
Mass mobilization (also known as social mobilization or popular mobilization) refers to mobilization of civilian population as part of contentious politics. Mass mobilization is defined as a process that engages and motivates a wide range of partne ...
.
Sarah Smarsh
Sarah Smarsh (born 1980) is an American journalist and nonfiction writer.
Background
Smarsh was born in rural Kansas and grew up on farms and in small towns. Her family moved frequently, and she attended eight schools before she reached ninth ...
, writing in ''
The New York Times
''The New York Times'' (''the Times'', ''NYT'', or the Gray Lady) is a daily newspaper based in New York City with a worldwide readership reported in 2020 to comprise a declining 840,000 paid print subscribers, and a growing 6 million paid ...
'' after the referendum was defeated, argued that "Kansas remains a beacon of liberty within the region," consistent with its history of being a " Free state" and extending
women's suffrage
Women's suffrage is the right of women to vote in elections. Beginning in the start of the 18th century, some people sought to change voting laws to allow women to vote. Liberal political parties would go on to grant women the right to vot ...