Kansas voters shocked the nation last year when they overwhelmingly rejected a proposed state constitutional amendment that would have said there is no fundamental right to an abortion. But that hasn’t stopped Kansas Republicans from opening the 2023 legislative session by trying to further curtail abortion access anyway.
Just after the Republican-controlled state legislature convened last week, GOP leaders laid out an agenda that included additional restrictions on abortion and more funding for crisis pregnancy centers, which operate to dissuade people from getting abortions. They also identified the Kansas Supreme Court’s 2019 decision in Hodes & Nauser v. Schmidt, which established a right to an abortion in the state constitution, as a key target.
They didn’t offer any details on what the additional abortion restrictions might be; the Kansas GOP and leadership in both legislative chambers did not respond to requests for comment. But abortion advocates are anticipating everything from a ban on abortion after 14 weeks of pregnancy to more restrictions on abortion providers and abortion services offered via telemedicine.
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, after that, only in cases where the pregnant person’s health is at risk. There are also a host of other restrictions on the procedure, including parental consent requirements for minors and restrictions on insurance coverage. Still, it’s become a regional haven for those living in nearby states with even more restrictive policies.
Though some national Republicans called the results of last year’s referendum in Kansas a “wake-up call” at the time, it doesn’t seem like the Kansas GOP has seen it as such. Rather, Republicans in the state are digging in their heels, despite the fact that Kansans voted 59 to 41 percent to save their abortion rights.
“[A]nti-abortion politicians either forgot how elections work or don’t care about the will of those they were elected to serve,” said Emily Wales, the president and CEO of Planned Parenthood Great Plains Votes. “It seems to be the latter, because in the first week of session they have already doubled down on their plans to attack reproductive freedom.”
The Hodes case is at the center of the Kansas GOP’s strategy in 2023.
Hodes established that the Kansas constitution protects the right to an abortion in even broader terms than Roe v. Wade once did federally. The state government can only infringe on that right when it can demonstrate a “compelling interest and has narrowly tailored its actions to that interest,” according to the ruling. The court consequently 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 president Ty Masterson argued at the press conference last week that Democrats want “unregulated abortion up to and, in some cases you see around the country, after birth,” and that, “with Hodes in place, we have the potential of that. All our commonsense restrictions are under attack.”
But in a red state like Kansas, Democrats have been reluctant to stake such a divisive position on abortion and some have even voted for abortion restrictions in the past. Now, they seem more concerned about keeping abortion safe and legal and ensuring that Republicans don’t enact further restrictions on the procedure 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 not been, the impossibility of such a procedure being done aside, any abortions after birth anywhere in the country.
Despite all this, Masterson and other Republicans are calling for the legal basis of Hodes to be tested.
To that end, Republican Kansas Attorney General Kris Kobach, who has described himself as “100% pro-life,” announced Wednesday that he intends to ask the state supreme court to reconsider its ruling in Hodes on the basis of the US Supreme Court’s ruling last year overturning Roe v. Wade and finding that the US Constitution doesn’t confer a right to abortion.
“One of the things that affects any court reconsidering any precedents is intervening events,” Kobach told the Associated Press. “There have been intervening events.”
If Hodes were overturned, Republicans wouldn’t face the same legal limitations in enacting restrictions on abortion — and could potentially curtail access not just for Kansans, but for out-of-state patients seeking care from all over the region.
Republican lawmakers have already introduced a bill that would lower the bar to impeach Kansas Supreme Court justices. Though it’s not clear on what basis Republicans might seek to impeach the justices, it’s seen as a means of changing the makeup of the court to be more favorable to anti-abortion advocates. They have also indicated that 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 based on merit by a nine-member nominating commission and then appointed by the governor. After their first year in office, they must win a retention vote to serve for another six years before facing another retention vote. All seven justices on the court survived their retention votes last year.
Kansas Republicans’ strategy on abortion might seem ignorant in the face of the spectacular failure of the abortion amendment and the reelection of Kansas’s Democratic Gov. Laura Kelly, who has already vetoed a number of Republican bills aimed at restricting abortion and has indicated that she will continue to do so this term. The GOP does have a supermajority this term, however, meaning the party has the votes to override Kelly’s vetos.
The election that protected abortion access also saw Republicans keep their supermajorities. In fact, the GOP caucus became even more conservative. Republican lawmakers were elected while making no secret of their anti-abortion positions, so they see themselves as having a mandate to proceed on their agenda, said Bob Beatty, a political pundit and professor at Washburn University in Topeka.
“It’s gonna take a lot more than two statewide votes to convince them to moderate on abortion. If they’re not being punished at the ballot box, they have no incentive to change,” he said.
Republicans in the state have also long relied on the abortion issue to prove their conservative bona fides, and old habits die hard.
“In this region of the country, a lot of politicians 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 operates an abortion clinic in Wichita.
That might be particularly true for GOP lawmakers eyeing a run for governor in four years, Beatty said. Though no one has formally announced their candidacy yet, Kelly is term-limited, and Masterson has been floated as a Republican contender.
For now, the Kansas Supreme Court’s decision in Hodes remains in place, and that limits just how far Kansas Republicans can go, even with their ability to overrule the governor’s veto. That means that their anti-abortion rhetoric may not translate into actual policy.
“It’s more wasting time and resources on a question that’s already been decided in multiple venues, not only in the courts, but also through the ballot measure,” Gingrich-Gaylord said.
Barring any changes brought about by the court, Kansas Republicans’ strategy seems to be to try to do what they can to restrict abortion and hope their legislation holds up legally. In the process, they seem eager to take advantage of any opportunity to appeal to future Republican primary voters.
If there is any reduction in abortion access in Kansas, that would reverberate throughout the region. Gingrich-Gaylord said that 70 percent of Trust Women’s patients at its 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 phone calls inquiring about their services in a single day.
“We’re kind of experiencing this permanent bottleneck,” he said. “So we’re entering this session with a little bit of trepidation — but also resilience and the dedication to making sure that the legislature remembers the vote in August.”