Just over a month after the State of Mississippi succeeded in getting the U.S. Supreme Court to overturn Roe v. Wade, the traditionally conservative State of Kansas voted overwhelmingly on Tuesday night to keep protections for abortion rights in their state constitution. Voters there rejected a constitutional amendment that would have removed protections for abortion rights from their state constitution.
“Them losing Kansas is a lot like them losing Mississippi,” Mississippi Reproductive Freedom Fund co-founder Laurie Bertram Roberts told the Mississippi Free Press on Wednesday, Aug. 3. “When they launched the Personhood initiative a little over a decade ago, everyone thought Mississippi was going to be it. They were going to make it in Mississippi, right? And Kansas is a lot like that.”
With 97% of the vote in by Wednesday afternoon, the voters who opposed removing abortion protections from the Kansas constitution outnumbered opponents by a 59%-to-41% margin. That is close to the 58%-to-42% margin by which Mississippi voters rejected the 2011 Personhood Amendment, a broad abortion and contraception ban that would have defined fertilized eggs and fetuses as “persons” and risked banning in-vitro fertilization and some forms of birth control.
In a statement Tuesday evening, President Joe Biden celebrated the Kansas result and said that the “U.S. Supreme Court’s extreme decision to overturn Roe v. Wade” in Dobbs v. Jackson Women’s Health Organization on June 24, 2022, “put women’s health and lives at risk.”
‘Radical’ Kansas and Abortion
Kansas, Roberts noted, has a long history of anti-abortion activism. In 1991, Wichita served as the site of the 46-day “Summer of Mercy” campaign in which Operation Rescue organized protests at abortion clinics there that drew thousands of activists from across the nation with the help of high-profile national evangelical leaders. Much of the attention focused on abortion doctor George Tiller’s clinic.
Years later, in May 2009, an anti-abortion extremist assassinated Tiller inside his church where he was serving as an usher.
“Kansas is where all the most radical abortion clinic protests happened,” Roberts said. “There’s a big history of anti-abortion protesting, I would say anti-abortion terrorism in Kansas and especially out of Wichita. The fact they can’t even come close to passing it in Kansas should be very telling to not only people in Kansas but nationwide. Abortion is not a losing issue. Abortion rights are not a losing issue.”
Even after Mississippi voters rejected the Personhood Amendment in 2011, lawmakers spent the next decade passing anti-abortion bills until they succeeded in triggering the U.S. Supreme Court case that overturned Roe v. Wade. A July 2022 survey found that a majority of Mississippians disagree with the Dobbs ruling and continue to oppose personhood legislation.
‘Confusion Misled Kansans’
In 2019, the Kansas Supreme Court ruled that abortion care is a “fundamental right” under the Kansas Constitution. In January 2021, Republican lawmakers in the state voted to place a referendum on this year’s Aug. 2 primary ballot, expecting voters to amend the Constitution to declare that “there is no Kansas constitutional right to abortion.”
In the Dobbs decision on June 24, 2022, the U.S. Supreme Court said it was returning the issue to the states. Value Them Both, a Kansas organization that backed the anti-abortion referendum, celebrated that day, saying the Dobbs ruling “emphasizes the importance of our democracy, restoring the power to the states to decide how and if they are going to place limits on the abortion industry.”
“The U.S. Supreme Court restored the people’s ability to come to individual consensus on abortion limits—but not in Kansas,” the organization said. “As it stands today, unelected judges in Kansas are the ones who will decide the fate of abortion limits. The Value Them Both Amendment is a reasonable approach and will ensure Kansas does not remain a permanent destination for the most extreme and painful abortion procedures.”
But after Kansas voters decisively rejected the amendment, Value Them Both claimed on Tuesday night that the outcome was the result of “an onslaught of misinformation from radical left organizations that spent millions of out-of-state dollars to spread lies about the Value Them Both Amendment.”
“Sadly, the mainstream media propelled the left’s false narrative, contributing to the confusion that misled Kansans about the amendment,” the organization said.
But the millions that flooded into Kansas came from both groups that support abortion rights and groups that oppose abortion rights. The Catholic Church spent $3.5 million to boost the Value Them Both Campaign, which raised $5.4 million overall; while Planned Parenthood spent $1.5 million on the Kansans For Constitutional Freedom campaign, which opposed the amendment and raised $6.4 million overall.
During a press conference on Wednesday, Mississippi Gov. Tate Reeves made a similar argument.
“I do not think that the outcome in Kansas’ election last night speaks definitively about the pro-life nature of that state or any other state. … The question that was on the ballot was rather confusing in my opinion,” he said. “I think the question that was on the ballot also probably led to certain pro-life individuals thinking that that particular move to put it in the constitution did not go far enough. So I think there were pro-life people who voted against that particular amendment for that reason.”
Tuesday’s ballot asked Kansans to vote “Yes” or “No” to approve the following constitutional provision: “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.”
During his time as lieutenant governor and Mississippi Senate president from 2012 to 2020 and as governor since, Reeves has repeatedly backed anti-abortion legislation, saying he wants to make Mississippi “the safest place in the nation for an unborn child.”
Mississippi has the nation’s highest fetal mortality rate. The Centers For Disease Control released new data today showing that Mississippi had 10.6 deaths at or after 20 weeks gestation per 1,000 live births—an increase from 9.4 in 2019. Mississippi’s fetal mortality rate is nearly double the national rate of 5.74. Mississippi also has the nation’s highest infant death rate.
‘A Losing Gambit’
If Kansans had adopted the amendment, Tuesday’s vote would have overridden the Kansas State Supreme Court’s 2019 ruling. State supreme courts elsewhere have also ruled that their state constitutions protected a right to abortion, including in Mississippi in the 1998 Mississippi Supreme Court case, Pro-Choice v. Fordice.
After the Dobbs ruling, the Mississippi’s last abortion clinic and the one at the center of the case filed a lawsuit arguing that, even without protections under federal law, the 1998 ruling still protected abortion access. A state circuit court judge allowed the state’s near total abortion ban to take effect in early July, though, saying she expected the current Mississippi Supreme Court would overturn Pro-Choice v. Fordice.
The Jackson Women’s Health Organization initially appealed the ruling to the Mississippi Supreme Court, but dropped the lawsuit after the clinic’s owner sold the building later that month. With no chance for the justices to overturn the ruling, the 1998 precedent technically remains law despite the fact that Mississippi no longer has an abortion clinic.
Mississippi Sen. Joey Fillingane is the author of a 2007 trigger law that took effect after the U.S. Supreme Court overturned Roe v. Wade, banning nearly all abortions in the state with limited exceptions for some instances of rape and life-threatening conditions. Between 2002 and 2008, he introduced six bills in an attempt to jumpstart a referendum to amend the Mississippi Constitution and override Pro-Choice v. Fordice.
Fillingane’s proposed change would have added a section specifying that “nothing in this Constitution shall be construed to grant any person the right to choose to have an abortion.”
After the Dobbs ruling, though, Fillingane said he does not foresee renewed efforts to amend the constitution even though the 1998 ruling technically remains in effect.
“Now that the abortion clinic has shut down and even sold its property, I don’t know that there’s anyone left to make that argument,” he said. If an organization that wanted to open a new abortion in the clinic were to file a lawsuit and revive the question, though, the idea of a referendum would be worth revisiting, he said.
“If someone wants to come in and challenge that, they’re certainly welcome to do so, but at this point I don’t see any need to proactively anticipate something happening in the future like that,” he said.
Before the Dobbs ruling, four states adopted similar constitutional amendments declaring that their state constitutions do not protect abortion rights, including Tennessee, Alabama, West Virginia and Louisiana.
‘Look At What Happened In Mississippi’
After the vote Tuesday night, Mississippi Sen. Rod Hickman, D-Macon, tweeted a “thank you” to Kansas, referring to the anti-abortion efforts as “GOP overreach.”
“Imagine working for over 50 years on one single thing only to find out the people you were working for NEVER wanted it,” he said.
Laurie Bertram Roberts told the Mississippi Free Press she was not surprised by the outcome, however.
“There’s a lot of people who are like, ‘This is so amazing and this is so shocking.’ It’s not shocking to me. These ballot initiatives have failed every single time,” she said. “And in fact, every time they’ve tried them they’ve lost by larger margins every time. This is a losing gambit for them every single time. They lose.”
In the hours after the Kansas vote, some supporters of abortion rights have argued that state ballot initiatives could prove a viable means for protecting abortion access even in conservative states dominated by anti-abortion lawmakers. That is not currently possible in Mississippi, though; after voters overwhelmingly adopted a medical-marijuana program by ballot initiative in 2020, the Mississippi Supreme Court discarded the vote and struck down the entire ballot-initiative process on a technicality.
Roberts said she would tell abortion-rights organizers in conservative states to “be careful” about pursuing ballot initiatives to restore abortion rights in conservative states.
“My only caution would be that it would behoove them to look at what happened in Mississippi the minute we started using ballot initiatives to move forward progressive change,” she said. “We ain’t got no ballot initiatives no more.”
The Mississippi Supreme Court’s majority said in 2021 that only the Mississippi Legislature could restore the right for citizen-initiated ballot referendums. After the ruling, state officials and lawmakers said adopting a new ballot initiative process was a priority, but failed to do so during the 2022 legislative session.
Despite the unpopularity of the Dobbs decision, Mississippi Republicans in Congress continue to sponsor federal legislation that would ban abortion nationwide, including a federal ban after six weeks of pregnancy and the Personhood-like Life At Conception Act, which would grant 14th Amendment rights to fetuses and fertilized eggs.