If there is any good that comes from the defeat of the Kansas abortion regulation amendment Tuesday, it ironically may be the bad that comes of it.
Devastated pro-life supporters are hoping and praying that the Wild West deregulation of the abortion industry – almost certain to happen in the courts now – will convince voters they made a mistake in voting the amendment down, and in choosing not to protect existing commonsense restrictions on the practice.
“It is not a lesson I want us to go through. But that may be what happens,” says state Sen. Molly Baumgardner, who led the two-year fight for the “Value Them Both” amendment on the Senate floor.
Perversely, women seeking abortions in Kansas are sure to have fewer protections from the abortion industry. Meanwhile, even the pro-abortion Guttmacher Institute admitted Kansas could experience a 1,000% increase in abortions – now about 8,000 a year – post-Roe v. Wade. And that was before the state’s voters decided Tuesday 59-41% not to regulate the practice legislatively.
Kansas law is likely to become more abortion-friendly than was Roe v. Wade at its end.
That’s because a 2019 Kansas Supreme Court ruling found an inherent right to abortion in the state constitution, meaning nearly two dozen regulations on the practice are now presumed unconstitutional. Several others have already been struck down, including a ban on dismemberment abortions.
More court-overturning of abortion laws is assuredly on the way – possibly including the requirement for parental notification when minors seek abortions.
It’s guaranteed that abortion proponents will now seek to overturn all or nearly all regulations on it in Kansas – the industry has never met a regulation it didn’t hate. The only question is how quickly they’ll move to do so.
“Will they wait until the public’s attention has moved on from the hard-fought battle over the Value Them Both amendment?” asks Margot Cleveland, The Federalist’s senior legal correspondent. “Or will they move immediately to have the laws declared unconstitutional? And will they challenge all the laws at once or in sequential lawsuits?
“If the abortion industry moves too quickly, Kansans may realize they were lied to about the amendment, teeing up a do-over. But with border and other nearby states such as Oklahoma, Missouri, Nebraska, Texas, Arkansas, Louisiana, and South Dakota banning or placing tight limits on abortions, abortionists in Kansas will likely be antsy to have the laws struck from the books …”
That the “no” campaign was disingenuous at best, and arguably dishonest, is plain enough. It sought, in carpet-bombed advertisements fueled by out-of-state money, to comfort Kansans into voting no by declaring that abortion is already regulated in the state: “The Legislature currently has the power to pose limits on abortion. To date, there are dozens of restrictions.”
Well, yes, but that was entirely the point of the amendment: Without it, those restrictions the no campaign crowed about will probably go away, to the campaign’s quiet delight.
The whole purpose of the amendment, Baumgardner says, was to return authority to the legislative and executive branches “to protect existing laws. To make sure an industry that doesn’t regulate itself will be regulated.
“The opposition put on a very skillful campaign of misinformation and fear-mongering.”
“Taxpayer-funded abortion will likely soon be required too,” Cleveland writes of Kansas’ future, “with a challenge to the Pro-Life Protections Act, which prohibits taxpayer funding of abortion. That statute also bans sex-selective abortions and requires anti-coercion warnings inside clinics, but those provisions will likely be declared unconstitutional in the near term.”
What the state will now be left with, says Baumgardner, is “judicial deregulation of the abortion industry. What we’ve found … is the judicial branch has no interest in that abortion industry being regulated.
“Kansans and the rest of the United States will see what we feared and what we predicted, and [that] the reasons behind the constitutional amendment were valid and were truthful.”
That, at least, could be to the good, depending on what Kansans do with that information. Or perhaps Kansas changed so fundamentally that it will be content to be the abortion destination of the Midwest, and more abortion-friendly than most blue states.
“Will Kansans accept an abortion-on-demand regime installed by their state court,” Cleveland writes, “or will they seek to reclaim the authority to regulate abortion consistent with their conservative values?
“For now, however, the only clear takeaway from the defeat of the Value Them Both amendment is that more innocent human lives will be lost to abortion.”
“There will ultimately be some good that comes about from all of this,” says Peter Northcott, executive director of Kansans for Life, saying the national pro-life community has seen the opposition’s post-Roe tactics and can adjust its own strategies as this battle moves on to other states.
There was a lot of confusion after Roe v. Wade was struck down, Northcott says, “and the opposition was able to capitalize on that confusion.” In addition, he said, misrepresentations by the no campaign weren’t corrected by the media. “I believe there’s many in the media that failed to hold the other side accountable for many of their claims.
“I think this gives our movement nationally some ideas of how we need to educate the voter, educate individuals about what an abortion is.”
At the same time, Baumgardner says, there will be “a new awakening for Kansas.
“We’ll continue to seek truth and fight for it, and for life.”