Kansas voters shocked the nation last year when they overwhelmingly rejected a proposed state constitutional amendment that would have said there is no basic right to abortion. But that hasn't stopped Kansas Republicans from opening the 2023 legislative session while still seeking to further reduce access to abortion.
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Soon after last week's meeting of the Republican-controlled state legislature, GOP leaders established a plan that included further restrictions on abortion and increased funding for crisis pregnancy centers, which work to dissuade people from having abortions. They also identified the 2019 Kansas Supreme Court decision in Hodes & Nauser v. Schmidt, who established abortion rights in the state constitution as a key goal.
They did not provide any details about what further restrictions on abortion might be; the Kansas GOP and leadership in both legislative houses did not respond to requests for comment. But abortion advocates are anticipating everything from banning abortions after 14 weeks of pregnancy to tightened restrictions on abortion providers and abortion services offered via telehealth.
Kansas already has some of the toughest restrictions nationwide short of an outright ban. Abortion currently remains legal up to 22 weeks of pregnancy and, thereafter, only in cases where the health of the pregnant woman is at risk. There are also a number of other restrictions on the procedure, including parental consent requirements for minors and restrictions on insurance coverage. However, it has become a regional haven for those living in neighboring states with even more restrictive policies.
While some National Republicans at the time called last year's referendum results in Kansas a "wake-up call," it doesn't appear the Kansas GOP saw it as such. Rather, Republicans in the state are putting their foot down, despite the fact that Kansans voted 59 to 41 percent to save their abortion rights.
“[A]nti-abortion politicians have either forgotten how elections work or don't care about the willingness of those elected to serve,” said Emily Wales, president and CEO of Planned Parenthood Great Plains Votes. "It appears to be the latter, because in the first week of the session they have already doubled down on their plans to attack reproductive freedom."
The Kansas GOP is still targeting the state's constitutional right to abortion
Hodes ruled that the Kansas constitution protects abortion rights in even broader terms than it once did at the federal level in Roe v. Wade. The state government can violate that right only when it can demonstrate a "compelling interest and has closely tailored its actions to that interest," according to the ruling. As a result, the court struck down a state ban on dilation and evacuation procedures, the most common method of performing an abortion after the first trimester of pregnancy.
Republican State Senate Chairman Ty Masterson argued at last week's press conference that Democrats want "unregulated abortion until, and in some cases seen across the country, after birth" and that, "with Hodes instead, we have the potential of that. All of our common-sense restrictions are under attack."
But in a red state like Kansas, Democrats have been reluctant to take such a controversial stance on abortion, and some have even voted for abortion restrictions in the past. Now they seem more concerned with keeping abortion safe and legal and with ensuring that Republicans do not implement further restrictions on the procedure in this term.
And according to the latest available data from 2021, no Kansans have had an abortion beyond 22 weeks of pregnancy since Hodes was decided, and there have been, other than the impossibility of such a procedure, any miscarriages after the birth in any part of the country.
Despite all of this, Masterson and other Republicans are calling for Hodes' legal basis to be tested.
To that end, Republican Kansas Attorney General Kris Kobach, who has described himself as "100 percent pro-life," announced Wednesday that he plans to ask the state supreme court to reconsider his ruling in Hodes based on the Court's ruling. Supreme Court last year overturning Roe v. Wade and discovering that the United States Constitution does not confer the right to abortion.
"One of the things that strikes any court reviewing precedents is the intervention of events," Kobach told the Associated Press. "There were events in between."
If Hodes is overturned, Republicans would not face the same legal limitations enacting abortion restrictions and could potentially limit access not only to Kansans, but also to out-of-state patients seeking treatment from across the region.
Republican lawmakers have already introduced a bill that would lower the bar for impeaching Kansas Supreme Court justices. While it's unclear on what grounds Republicans might seek to impeach judges, it is seen as a means to change the composition of the court to be more supportive of anti-abortion advocates. They also indicated they intend to reintroduce a constitutional amendment that would require Kansas Supreme Court nominees to be confirmed by the Kansas Senate, which has been controlled by Republicans for more than a century. (A similar measure failed last year.)
Currently, justices are nominated on merit by a nine-member nominating committee and then appointed by the governor. After their first year in office, they must get a maintenance vote to serve another six years before facing another maintenance vote. All seven justices on the court survived their retention votes last year.
Why Kansas Republicans are insisting on abortion
Kansas Republicans' abortion strategy might seem ignorant in the face of the spectacular failure of the Abortion Amendment and the re-election of Democratic Kansas Governor Laura Kelly, who has already vetoed a number of Republican bills aimed at restrict abortion and has indicated that it will continue to do so this term. The GOP has an absolute majority in this term, however, meaning the party has the votes to override Kelly's vetoes.
Elections that protected abortion access also saw Republicans retain an overall majority. Indeed, the GOP caucus has become even more conservative. Republican lawmakers were elected without hiding their anti-abortion positions, so they consider themselves mandated to move forward on their agenda, said Bob Beatty, a policy expert and professor at Washburn University in Topeka.
“It will take a lot more than two statewide votes to get them to moderate on abortion. If they are not punished at the polls, they have no incentive to change,” he said.
Even Republicans in the state have long relied on the abortion issue to demonstrate their conservative bona fides, and old habits die hard.
“In this region of the country, many politicians have cut their teeth on anti-abortion legislation. It's almost like a rite of passage,” said Zack Gingrich-Gaylord, a spokesperson for Trust Women, which runs an abortion clinic in Wichita.
That could be especially true for GOP lawmakers who are aiming for a race for governor in four years, Beatty said. While no one has formally announced their candidacy yet, Kelly has a limited term and Masterson has been floated as a Republican contender.
For now, the Kansas Supreme Court decision on Hodes remains in effect, limiting how far Kansas Republicans can go, even with their ability to override the governor's veto. That means their anti-abortion rhetoric may not translate into real policy.
"It's more of a waste of time and resources on an issue that has already been decided in multiple venues, not just in the courts but also through voting," Gingrich-Gaylord said.
Barring any changes made by the court, the strategy of Kansas Republicans appears to be to try to do what they can to limit abortion and hope that their legislation legally holds up. In the process, they seem eager to use every opportunity to appeal to future Republican primary voters.
If there was a reduction in abortion access in Kansas, it would reverberate throughout the region. Gingrich-Gaylord said 70 percent of Trust Women's patients at her Kansas clinic are from Texas, which enacted a near-total ban on abortion last year. A few weeks ago, the clinic received over 16,000 calls asking about their services in just one day.
"We are experiencing this permanent bottleneck," he said. "So we enter this session with some trepidation, but also resilience and dedication to making sure lawmakers remember their August vote."
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