This week, Kansas voters shocked political observers when they overwhelmingly rejected a proposed constitutional amendment that would have removed abortion rights from the Kansas state Constitution. Nearly 60 percent of Kansans voted against the “Value Them Both Amendment,” which would have given the state legislature the authority to ban abortion. Kansas would have been the fifth state to amend its Constitution to explicitly declare that its residents had no right to an abortion.
How Kansas got to this point
In 2015, the Kansas legislature passed a law severely restricting second-trimester abortions by banning a procedure called “dilation and evacuation.” The law never went into effect because three state courts overturned it.
In 2019, the Kansas Supreme Court ruled that the law was unconstitutional, because the Kansas Constitution protected a woman’s right to personal autonomy. The only way for Kansans to further limit abortion rights would be to amend the Constitution.
How state constitutions change
Voters have changed the Kansas Constitution nearly 100 times since it was adopted in 1859, most recently in 2019. That’s actually below average; most state constitutions have been amended more than 100 times. Some states have changed their constitutions far more than that: Alabama’s, for example, is nearing 1,000 edits. Of course, that’s quite different than the stable U.S. Constitution. States have ratified only 27 amendments to the U.S. Constitution over the past two-and-a-half centuries since the nation’s inception.
Nevertheless, in all states, amending constitutions is harder than enacting legislation. This is by design. Understanding that constitutional amendments have more permanent and sweeping policy consequences, the framers generally agreed that they should require greater consensus among legislators and voters.
There are various paths for changing a state Constitution. This time, Kansas voters used a legislatively-referred ballot referendum. That’s when the legislature creates and approves an amendment, via roll call vote in both chambers, which is then placed on the ballot during the next election. Amending the Kansas Constitution requires a two-thirds vote in the upper and lower state legislative chambers and then the support of a simple majority of voters.
All states except Delaware require voters to ratify any constitutional changes approved by the state legislature. This safeguards voters against legislators amending the Constitution in a self-serving way, such as doing so to increase lawmakers’ pay to an absurdly high amount.
In many states with antiabortion laws, majorities favor abortion rights
Why did abortion opponents lose?
Kansas state legislators and many observers clearly underestimated voters’ support for abortion rights. Pundits were startled that deep red Kansas — which gave Donald Trump 56 percent of its presidential vote in 2020 — affirmed a woman’s right to abortion with a double-digit margin. Less surprising was the geographic divide. The amendment divided the state in half, east versus west. More-moderate-leaning metropolitan areas of Wichita, Topeka and Kansas City overwhelmingly shot down the amendment. Exurban and rural areas of the state, including every county west of Wichita, voted in favor.
Putting the abortion amendment on the August primary ballot instead of the November general ballot should have helped antiabortion proponents of the amendment. Among the Democratic races, only the U.S. Senate primary was seriously contested. Meanwhile, there were a handful of competitive statewide Republican primaries, including secretary of state, attorney general and treasurer.
However, many voters apparently were motivated to go to the polls specifically for the amendment referendum. Nearly three times as many voters showed up for these 2022 primary elections as turned out for the most recent primary election in 2018. Moreover, newly registered voters did not reflect the gender balance of the voting eligible population. Since the Supreme Court overturned Roe v. Wade, nearly 70 percent of newly registered Kansan voters were female — helping to explain the high levels of support in Kansas for reproductive rights.
But considerable numbers of Republicans also opposed the amendment. Many counties experienced precipitous gaps between Trump support in 2020 and support for the constitutional amendment in this week’s primary. For example, in 2020, Trump won Morton County with 86 percent of the vote, but only 68 percent supported the antiabortion constitutional amendment.
Why did the legislature approve something that voters opposed? Ballot initiatives frequently get far less support than the legislature expects. Political science research finds that state legislators often overestimate the conservatism of their constituents. This could be why Kansas legislators missed the mark and expected Kansans to want an abortion ban, when in reality most wanted to preserve abortion rights.
Other research suggests that in general, voters oppose change and prefer to maintain the status quo. That’s certainly what happened here: Kansans rejected changing the Constitution.
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The implications of overturning of Roe v. Wade
Many states reacted quickly to the Supreme Court decision that overturned Roe v. Wade. Some states had already enacted trigger laws that banned abortion as soon as the court issued its decision in Dobbs v. Jackson Women’s Health Organization.
Kansas was different. Before the decision, abortion opponents had no reason to amend the Kansas Constitution; the federal and Kansas constitutions similarly restrained how much the legislature could restrict abortion.
The defeated amendment would have allowed the legislature to pass more stringent restrictions on abortion, including a full ban. But now the Kansas Supreme Court’s decision to protect a woman’s right to abortion will stand. With many of its neighboring states adopting near or total bans on abortion, Kansas may become a destination for Midwestern women unable to receive reproductive care in their home state.
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Zoe Nemerever (@ZoeNemerever) is an assistant professor of political science at Utah Valley University, specializing in state politics and representation.