TOPEKA — A renewed effort in Kansas to secure elusive two-thirds majorities in the House and Senate for a pro-life constitutional amendment Friday produced an echo chamber of arguments on both sides, with proponents arguing it was a bid to correct judicial overreach and opponents declaring it a deeper quest to eventually end access to abortion.
The House and Senate committees with jurisdiction over abortion policy convened in the Old Supreme Court chamber of the Capitol for back-to-back hearings on a proposed amendment to the Kansas Constitution designed to reverse a Kansas Supreme Court decision declaring the state’s Bill of Rights provided women a constitutional right to abortion in Kansas.
The Value Them Both amendment proposed for August 2022 primary ballots would clarify that Kansas legislators retained the right to pass laws regarding abortion and wouldn’t have to provide government funding for abortion. The amendment would allow but not require lawmakers to take into account pregnancies resulting from rape or incest or medical circumstances necessary to save the life of the mother.
In 2020, the Kansas Senate approved the amendment but it fell a few votes short in the Kansas House. The COVID-19 pandemic derailed a strategy to return to the issue late in last year’s legislative session.
Two sides of coin
“Decades of experience have shown that unlimited abortion hurts women and babies,” said Jeanne Gawdun, a lobbyist with Kansans for Life. “Nowhere is that more evident than in the area of abortion clinic licensure, inspection and reporting.”
She said approval of the amendment by two-thirds majorities of the Legislature and by a simple majority in statewide balloting would “return to the people the right to regulate abortion through their elected officials.”
Rachel Sweet, regional director of public policy for Planned Parenthood Great Plains Votes, said the amendment should be defeated because Kansans deserved the right to make their own personal, private medical decisions without government interference.
The proposed constitutional amendment on abortion strives to take away constitutional rights of women, she said. This is the next step in a pattern of medically unnecessary restrictions that push abortion care out of reach for the state’s most vulnerable citizens with the ultimate goal of banning abortion outright, she said.
“Decisions about whether to end a pregnancy are deeply personal and should be left to a woman in consultation with her health care provider, her family and her faith — not politicians in Topeka,” Sweet said. “Throughout their pregnancy, a woman must be able to make her own decisions with the advice of the health care professional she trusts. This amendment could ultimately prevent many Kansans from making those important, personal decisions in consultation with their doctors.”
Sen. Kellie Warren, a pro-life Republican from Leawood and chairwoman of the Senate Judiciary Committee, said the amendment was designed to keep women safe rather than ban abortion.
“Do you see an increase in abortions in Kansas as a good thing or a bad thing?” Warren said.
Sweet said an increase in abortions would be value-neutral to Planned Parenthood. She said the number didn’t matter. The patient’s welfare was the point, she said.
“I don’t think it’s appropriate to stigmatize abortion,” Sweet said. “What matters is that people are getting the health they need.”
Pivotal court decision
Nearly two years ago, the Kansas Supreme Court issued an opinion in Hodes & Nauser v. Derek Schmidt affirming a Shawnee County District Court’s order enjoining enforcement of legislation banning an abortion procedure known as “dilation and evacuation.”
In that 6-1 decision, the Supreme Court concluded Section 1 of the Bill of Rights in Kansas contained “protection of the right of personal autonomy, which includes the ability to control one’s own body, to assert bodily integrity and to exercise self-determination.” This right allows women to make decisions that include whether to continue a pregnancy, the state’s highest court said.
It’s not clear when the full House and Senate would vote on the proposed amendment, but GOP legislative leaders have made it a high priority in terms of policy and because spread of COVID-19 could prevent the Legislature from convening at the statehouse.
Gov. Laura Kelly doesn’t possess veto power over proposed amendments to the Kansas Constitution.
Rep. Brandon Woodard, a Lenexa Democrat, asked Kansans for Life why the amendment would be placed on the August 2022 primary ballot when it could be considered by Kansans in August 2021 or November 2022.
KFL’s Gawdun didn’t precisely answer the inquiry, but Woodard said it would make more sense to offer the amendment at a time when the highest number of Kansans might weigh in.
“It looks like we’ll definitely need time for people to be educated about this, so I look forward to an amendment to move this to a general election,” Woodard said.
Brittany Jones, director of advocacy for the Family Policy Alliance of Kansas, said the state Supreme Court “created” a fundamental right to abortion that was shielded by “strict scrutiny,” which presumes laws adopted by the Legislature on abortion would be unconstitutional. This abortion right in Kansas would remain even if the Roe v. Wade decision was struck down by the U.S. Supreme Court.
She said the areas of Kansas abortion law likely to be undermined would include the 1997 “right to know” statute that provides information to women and requires a 24-hour waiting period before an actual abortion. Also in jeopardy, she said, was the state’s parental consent law regarding minors seeking an abortion, a law forbidding state tax dollars be spent on abortions and a series of special regulations for abortion clinics.
Ann Marie Alvey, director of Project Rachel and Project Joseph, a post-abortion healing ministry, supported the amendment. She told the Senate committee the right to be well-informed about outcomes of abortion was what should be fought for — not the right to choose.
Sen. David Haley, a Democrat from Kansas City, Kansas, was taken aback by such a statement.
“If a woman does not have a right to make the decision as to what occurs with her own body, who do you think should be making the decision about whether or not to have a family or start a family or any other private medical decision?” Haley said. “Who should the woman trust?”
Haley also expressed concern that the amendment could push women to pursue abortions in other states or to leave the state entirely.
Catherine Powers, a physician who is a hospice and palliative medicine specialist in Kansas City, Mo., said the Supreme Court decision on abortion rights could lead to a situation in which minors were getting abortions without knowledge of parents or guardians. She said the constitutional amendment would make certain that permission for medical procedures involving unemancipated minors didn’t deviate from the standard of care in other areas of medicine.
Elizabeth Kirk, director of the Institute for Faith and Culture at the St. Lawrence Catholic Center at the University of Kansas, said the proposed constitutional amendment was a “modest, reasonable” response because it simply turned back the clock on the Supreme Court’s view of abortion.
“Wherever you are on the spectrum, Hodes went too far,” Kirk said. “Whether you’re pro-life and you believe there is no right to abortion under any circumstance. Whether you’re pro-choice and you believe it should be a woman’s right but she should have her health and safety protected. Or, whether you’re somewhere in the middle.”
Well, not so fast
Rep. Boog Highberger, a Democrat from Lawrence, asked Kirk what would happen in Kansas if Roe v. Wade was reversed by the new conservative majority on the U.S. Supreme Court.
“In the event this amendment is passed and Roe v. Wade is overturned at the federal level, would there be any limit on this Legislature to restrict or ban abortion?” he said.
Kirk said his question raised a red herring in the Kansas debate because Roe v. Wade remained the law of the land and its reversal was a “big hypothetical.”
“So,” Highberger said, “there would be no limit on the Legislature’s ability to restrict or ban abortion?”
Former state Rep. Nancy Lusk, who was among 14 people who sought to testify against the amendment, said she opposed the measure because it would tread closer to banning abortion in a way that made it equivalent to murder.
“I am a believing and church-going Christian and I do not believe that full personhood can be assigned at the time of conception or soon after, in part, because no one knows when a soul enters a fetal body,” she said. “The right of self-defense for pregnant women in medical emergencies must be protected. We know for certainty that a woman is a person.”