A question on the August 2 ballot asks voters whether to give the state legislature power to again make abortion laws following a 2019 Kansas Supreme Court ruling that constitutionally protected the right to abortion. File photo.

A leaked U.S. Supreme Court draft opinion that foreshadows the end of a 49-year-old constitutional right to abortion has pushed the Kansas primary election this August to the forefront, as the sides square up on an amendment addressing the state’s abortion law.

The federal high court draft – which Chief Justice John Roberts has since said is authentic – suggests a five-justice majority poised to overturn Roe v. Wade, the landmark 1973 decision that made abortion a constitutional federal right and whose termination has been on conservative and religious agendas for decades.

If the court overturns Roe, decisions on abortion legality will be left up to individual states. Many already have restrictive regulations on abortion providers and informed consent, for example.

Others have gone further, with so-called trigger laws that would end legal abortion as soon as the high court rules Roe invalid. Some states would not permit it even in cases of rape or incest.

But Kansas is unusual in that a recent state supreme court decision guaranteed constitutional protection of abortion.

A 2019 decision, Hodes & Nauser v. Derek Schmidt, holds the drafters meant the constitution to protect everyone’s right to personal autonomy, including decisions on pregnancy.

In August, voters will decide whether to let that stand or to add an amendment to the Kansas Constitution that specifies state lawmakers can pass laws pertaining to abortion.

Here’s a look at what’s coming:

Dubbed the “Value Them Both” amendment by its supporters, its logo – a stylized silhouette of a woman holding a baby – is already cropping up on bumper stickers and yard signs in Johnson County.

Here’s the actual wording:

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.

What that means exactly is the focus of the vote.

Supporters say it merely allows legislators the right to regulate abortion, which they claim is unlimited under the current law. Critics say the amendment would open the door to harsh restrictions that have been the trend in other states.

Since Roe made abortion a constitutional right, states have never been able to outlaw it entirely. They have, through legislatures, been able to write restrictions, though.

Kansas currently prohibits abortion past 22 weeks, has a 24-hour waiting period and counseling requirement, limits public funding and requires both parents consent for a minor’s abortion.

But restrictions always have a chance of being undone if they don’t pass a court challenge.

What’s new with this year’s vote is that abortion opponents have taken things to the state constitutional level. With a constitutional amendment, lawmakers will be free to write whatever restrictions they can pass, or even outlaw abortion entirely.

Value Them Both proponents say the amendment is needed so lawmakers can write regulations on abortion.

“An activist Supreme Court in Kansas has created an unlimited right to abortion in our Kansas constitution, and Value Them Both is what legally reverses that opinion and allows the people of Kansas to place basic and simple regulations around the abortion industry,” said Brittany Jones, director of policy and engagement for Kansas Family Voice.

“And so while there might be some laws on the books, those laws are presumed unconstitutional, based on the state Supreme Court ruling,” she explained.

The Value Them Both website maintains that the amendment is a safeguard against laws going into effect that allow “live dismemberment” abortions and tax-funded abortions, though neither of those things is currently allowed.

Jones takes issue with the idea that the amendment would remove a guardrail against harsh restrictions.

“I think that is a complete misconstruction of what our Kansas Supreme Court has done. What they’ve created is not just a safety rail, it’s a mandate. It is a mandate for unlimited and unrestricted abortion in Kansas, and we’re already seeing our state become a destination for abortion,” she said.

The number of abortions performed in Kansas has increased since other nearby states, including Oklahoma and Texas, have passed strict abortion limits, but according to public health statistics, there have been no abortions past 22 weeks since the Kansas Supreme Court ruling.

The people campaigning against the August amendment take strong exception to the idea that it is merely there to protect common-sense regulations.

Ashley All, spokesperson for the pro-choice group Kansans for Constitutional Freedom, said the amendment’s language is confusing and easily misunderstood.

A careful reading, she said, shows that it specifically allows legislators the right to pass laws concerning pregnancy from rape, incest or in circumstances where the mother’s life is in danger.

The amendment would eliminate the right to autonomy that was guaranteed, in a limited way, by the 2019 Kansas Supreme Court opinion, she said.

“Ultimately the constitutional amendment will give the power to politicians to make any laws they want regarding abortion, including the full ban. There are not any exceptions carved out to protect people who have been raped or abused. And that’s really important,” she said. “It’s our position that women deserve the right to make their own health care decisions and their own reproductive decisions free from government interference.”

Even people who do not expect to become pregnant should be concerned about laws that open the door to government control over personal health decisions, she said.

A bill that was recently introduced in Kansas that would ban abortion with no exception for rape, incest or if the mother’s life was in danger has become a talking point among pro-choice advocates.

HB 2746, introduced by Rep. Trevor Jacobs, a Republican from Fort Scott, was introduced late in the 2022 session and has no chance of consideration in the limited time left in this year’s session.

It defines life as beginning at fertilization and would criminalize abortion except in the case of miscarriage, stillbirth or ectopic pregnancies.

“That bill, I think, makes their intentions very clear,” All said. “This constitutional amendment paves the way for a total ban on abortion. And if you look at history here, that bill is pretty similar to things that have been proposed in the past. They have proposed a lot of overly burdensome regulations and restrictions. And we are confident that they are intending to ban it outright.”

However, Jones with Kansas Family Voice said the bill is still a “what if.”

“We don’t even know what the U.S. Supreme Court is going to say on this issue,” she said. “We are laser focused on August 2. We have said in the past, that while bills like the one you reference have been introduced, they’ve never gotten political traction.”

The ballot question will be included on the August 2 primary, which is typically a lower-turnout election, especially in non-presidential election off-years.

But you will not need to register as a Democrat or Republican to be able to vote on the amendment. If you are unaffiliated, you will simply not receive ballots to vote for candidates in partisan races.

The amendment is a statewide question, so registered voters in each county will be able to vote on the amendment.

In the meantime, expect canvassers, signs and maybe rallies in the future.

Political yard signs are restricted by Kansas law only in public rights-of-way 45 days before an election to two days after. Individual cities have limited regulating abilities for signs on private property.

Roxie Hammill is a freelance journalist who reports frequently for the Post and other Kansas City area publications. You can reach her at roxieham@gmail.com. 

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