What does Kansas’s ‘no’ vote on anti-abortion amendment mean for midterms?
The state is a rather peculiar place – its result may not matter as much as some analysts and pundits are suggesting
How significant is Kansas’s resounding rejection of a state constitutional amendment that would have paved the way for a highly restrictive abortion ban?
On the one hand, the vote of 59% against to 41% in favour represents a remarkable achievement for the state’s Democrats and reproductive justice advocates. Grassroots educational and ‘get out the vote’ efforts roundly quashed the Republican attempt to sneak the amendment through in a late summer primary election.
Nationwide, primary elections typically attract low voter turnout, and in this case, many independent voters – those not registered as members of either of the US’s two major parties – may not have initially known they were allowed to vote on the ballot initiative, since Kansas does not allow independents to vote in its closed partisan primaries. It is particularly impressive, then, that almost one million people voted – Kansas’s highest primary turnout since at least 2010.
The referendum result also represents a satisfying defeat not only of Republican politicians, but also of the reactionary local Catholic bishops, who invested heavily in trying to get the amendment passed.
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This provides American liberals and leftists with some much-needed good news amid a seemingly endless parade of horrors, and the resulting glimmer of hope may be enough to give Democrats some momentum as the midterm elections approach.
On the other hand, Kansas is a rather peculiar place. The stunning result may not mean as much for the national ‘big picture’ as some analysts and pundits are suggesting.
A complex history
Delving into Kansas’s history sheds light on why we should be cautious about drawing sweeping conclusions on the basis of the abortion referendum. By the same token, it would be dangerously wrong to assume that the battle over abortion rights is over in the state.
For a topographically flat, largely rural state that can be mind-numbingly dull to drive through, Kansas looms surprisingly large in American history and pop culture. Those who know of the state primarily through the 1939 MGM movie adaption of L. Frank Baum’s ‘The Wizard of Oz’, which starred Judy Garland, may associate Kansas primarily with windswept plains and simple farming folk for whom “there’s no place like home”.
Kansas is indeed located in the heart of ‘Tornado Alley’, a loosely defined region in the middle of the US, where tornadoes are a frequent occurrence. The state’s major economic sectors include beef cattle ranching and wheat production.
But newshounds with an interest in the culture wars may think of the Westboro Baptist Church when Kansas is mentioned. The tiny extremist church in the state’s capital,Topeka, is known for its hateful slogan, “God hates fags”, and its members carry out virulently homophobic protests across the country, including at funerals.
For American history buffs, though, the progressive cause of abolition of slavery and the militant abolitionist John Brown may first spring to mind when Kansas is mentioned.
The phrase ‘bleeding Kansas’ refers to an extended episode of guerilla warfare between pro-slavery and abolitionist forces unleashed by Congress’s 1854 Kansas-Nebraska Act, which overturned a previous compromise that had limited the expansion of slavery. This proved explosive, helping to precipitate the outbreak of the American Civil War seven years later.
Those events led to the founding of the Republican Party on an abolitionist platform. It was the Democrats who were then and long after associated with slavery, Jim Crow and segregation.
By a strange twist of fate, however, today’s neo-Confederates are concentrated in the GOP, the result of a realignment that began when President Lyndon B. Johnson signed the Civil Rights Act of 1964, recognising that this would cost the Democrats support in southern and southern-sympathising states. Not coincidentally, 1964 is the last time Kansas’s electoral votes went to a Democratic candidate for president.
In 2005, the Kansas State Board of Education passed science education standards that required students be taught about ‘controversies’ over evolutionary theory. In the same year, Kansas became almost synonymous with ‘red state’ in the popular American imagination, thanks to the publication of Thomas Frank’s bestselling nonfiction book, ‘What’s the matter with Kansas?’
More recently, Kansas has made national and international headlines for many citizens’ flamboyant opposition to COVID mask and vaccine mandates. Embarrassingly for the state, many of its anti-vax agitators donned yellow Stars of David in order to compare reasonable public health measures to the Holocaust.
With all that in mind, you might think that it would be easy for right-wing Christian extremists to get a highly restrictive abortion ban passed in the state. And yet it hasn’t been, despite a concerted effort over the past three decades.
In fact, as Frank well understands, Kansas’s political reality is a good deal more complex than its red state caricature.
‘The battle in Kansas isn’t over’
When it comes to abortion, Kansas’s state legislature began passing a number of restrictions in the 1990s, as anti-abortion protests ramped up in the state. Around that time, George Tiller, a Kansas native who was one of the few doctors in the US who performed late-term abortions, became a particular target of anti-choice extremists.
His clinic was bombed in 1986, he was shot in 1993 and was fatally gunned down at his church in Wichita, the state’s largest city, in 2009. And yet Kansas continues to place relatively few restrictions on abortion – remarkably so by red state standards.
For help grasping this context, I turned to my friend and colleague Eve Levin, professor emerita of Russian history at the University of Kansas, an expert in women’s and gender studies and a keen observer of state and national politics.
Asked why conservative Kansas so overwhelmingly defeated the abortion amendment, Levin replied, “Even the Right-wing Republican authors of the amendment knew that it would not be likely to pass in a fair vote.
“That’s why they crafted the amendment in such a confusing and insidious way, so that they could pretend (as they did in their propaganda) that the amendment wasn’t a ban on abortion; it would just allow ‘common sense restrictions’.”
The summary of the amendment on the ballot, which was composed by its proponents, read as follows:
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.
The anodyne language of ‘valuing’ women and ‘laws that account for circumstances’ sounds essentially benign. As Levin pointed out, however, “Since the current constitution contains no prohibitions on abortion for rape or incest or the life of the pregnant person, the only reason to specify these circumstances in the text of the amendment was to permit banning abortion even under these circumstances.”
Meanwhile, “the constitution of the state of Kansas does not require government funding of abortion and does not create or secure a right to abortion” sounds deceptively like a simple statement of fact. It is actually the heart of the matter, because, according to a 2019 ruling by the Kansas Supreme Court, the state constitution does entail “a woman's right to make decisions about her body, including the decision whether to continue her pregnancy”.
This 6-1 ruling rendered a 2015 ban on dilation and evacuation abortions (that lower courts had kept from going into effect) unconstitutional in the state, and the overturning of Roe v Wade at the federal level could not alter the state constitution. It is this ruling that Kansas’s Republican politicians must find a way to overturn if they are to succeed. But how is it that in a state with a perennially GOP-dominated legislature, the State Supreme Court justices are so moderate?
Levin explained that the legislature plays no role in a given governor’s appointment of justices to fill court vacancies. Instead, a remarkably fair and professionally structured Supreme Court Nominating Commission vets applications and narrows them into a small pool, from which the governor makes appointments.
Since the 1960s, despite voting consistently Republican for president, Kansans have elected Republican and Democratic governors in more or less equal measure. Levin notes that, as “Kansas has vacillated between Democratic and Republican governors”, some of the Republicans have been relative moderates.
Kansas is currently governed by a Democrat and a woman, Laura Kelly, who is up for reelection this November. In this respect, it may be instructive to compare Kansas to my home state of Indiana, which has never elected a woman as governor and has not had a Democratic governor since 2005.
It is noteworthy, however, that in the recent process of passing a draconian ban on abortion from conception (with narrow exceptions, in theory, for rape, incest and danger to the life of the mother), Indiana’s Republican legislators voted down an amendment that would have put the question of abortion to the state’s voters in a referendum – perhaps a sign that they don’t trust Indiana voters not to behave in the same way Kansans did.
Even Kansans who have qualms about abortion don’t want the state inserting itself into individuals’ healthcare decisions
Levin stressed that in addition to the extensive on-the-ground organising effort, “convincing messaging” helped sway Kansas’s abortion vote.
Opponents of the amendment used slogans including ‘Save choice’, ‘Stop the ban’ and, the one Levin thinks was most important, ‘Keep health decisions private’. She explained: “Even Kansans who have a lot of qualms about abortion don’t want the state government inserting itself into individuals’ healthcare decisions.”
This is an arguably more ‘conservative’ position than the stance that the state should exert total control over reproductive health for what amount to Christian theocratic reasons. At the very least, it’s a different sort of conservatism, and those conservative attitudes also exist in states like Indiana, sitting in tension with the more radical right-wing drive to control and police the bodies of marginalised people.
Like other red states such as Texas, Indiana also has a ‘pro-business’ faction of Republicans who do not like it when the state becomes an extreme outlier on social issues, since that brings serious economic consequences. And it is possible that such attitudes will help Democrats across the US in November, if they can keep access to abortion care front and center in voters’ minds.
In our conversation, Levin emphasised that “the battle in Kansas isn’t over”. The state’s Supreme Court justices are appointed for six-year terms and may continue to serve until they face mandatory retirement at the end of the term in which they turn 75. At the end of each six-year term, however, they are subject to potential removal by the voters through retention votes.
Republican attempts to get the voters to recall justices failed in 2016, but they will try again this November. If Democratic voters in Kansas and elsewhere should draw one lesson from the rejection of the abortion amendment, it is that grassroots organising and effective messaging can make a huge difference to election outcomes.
Despite the uniqueness of Kansas, that its voters held the line on abortion care does bode well for the midterms – but no one who wants to prevent Republican control of the entire federal government can afford to count any chickens or sit on their laurels.
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