Kansas conservatives are trying to overturn a state Supreme Court decision that protects abortion rights and threatens years’ worth of Republican-enacted restrictions, guaranteeing an election-year fight over amending the state constitution.
A legislative study committee opened two days of hearings Tuesday on a ruling in April by the state’s highest court that access to abortion is a fundamental right under the Kansas Constitution. The Republican-led committee is expected to urge the full, GOP-controlled Legislature to put a proposed constitutional change on the ballot next year for voters to consider.
Anti-abortion groups and legislators said Tuesday that they’re still drafting their proposal. Mary Kay Culp, executive director of Kansans for Life, said the measure wouldn’t seek to ban abortion outright but would declare that the Legislature determines how it is regulated.
If the effort succeeds, Kansas would be among a handful of states in which voters have added provisions to their state constitutions to declare that they don’t grant a right to an abortion. Alabama and West Virginia approved theirs last year, and Louisiana voters are considering a ballot question next year.
“We’re really stuck here,” Culp told the committee. “There is no other way to do it.”
Abortion rights opponents didn’t push for action before lawmakers adjourned their annual session in May, saying they wanted to confer with lawyers throughout the country and build political support.
The Legislature has long had anti-abortion majorities, but abortion opponents were a bit spooked in early May, when anti-abortion lawmakers narrowly failed to override Democratic Gov. Laura Kelly’s veto of a bill that would have required providers to tell patients about a disputed treatment to stop a medication-induced abortion after it has been started.
Overriding a veto requires the same two-thirds majorities in both chambers that are required to put a proposed constitutional amendment on the ballot for a statewide vote.
And in Iowa, another Republican-leaning state where the highest court issued an abortion-rights ruling in 2018, lawmakers have failed to move forward with a constitutional change, and one couldn’t go before voters there until 2022.
“Those politicians who are very opposed to abortion, for whom this is their No. 1 issue, realize that this isn’t an easy task anymore,” said Rachel Sweet, a lobbyist for Planned Parenthood Great Plains. “It’s going to be tricky for them to get the votes that they need.”
The Kansas court decision came as other states moved to ban most abortions in direct challenges to the U.S. Supreme Court’s historic 1973 Roe v. Wade decision. In Kansas, the April decision means that even if Roe were overturned, state courts could reject new restrictions or invalidate those enacted under Kelly’s conservative Republican predecessors.
The Kansas Supreme Court declared that the state constitution’s Bill of Rights grants a “natural right of personal autonomy” protecting a woman’s right to end her pregnancy. Critics see that as an overreach because most abortions were illegal in Kansas Territory when the state constitution was adopted in 1859.
Two justices in the 6-1 majority have announced their retirements, and Kelly, an abortion rights supporter, will name their replacements in the coming months, with no oversight from lawmakers. Abortion foes also are pushing a proposed constitutional change to require state Senate confirmation of Supreme Court justices, hoping that the court eventually would move to the right.
“Then, we are inserting politics into the judicial decision-making process, and that’s a very bad idea,” said state Rep. John Carmichael, a Wichita Democrat who supports abortion rights.
The Kansas court’s abortion decision blocked enforcement of a first-in-the-nation ban on a common second-trimester procedure. Special health and safety regulators for abortion providers have been tied up in state court since 2011.
Abortion opponents worry that even long-standing laws, such as one requiring a parent’s consent for a minor’s abortion, could be in jeopardy if the decision isn’t overturned.
“Personally, it’s my top priority,” Kansas Senate President Susan Wagle, a conservative Wichita Republican, said in an interview. “And I have a lot of colleagues who agree that this is most important.”
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