Abortion Ban Protest

People protest in favor of abortion in Washington, D.C.

If you can get pregnant or know someone who can, or if you can get someone pregnant or know someone who can, keep reading.

On Aug. 2, if you live in Kansas, you’ll be voting on whether to amend our Kansas state constitution yet again (it’s been amended 98 times), this time to take away the right to access abortion, in all cases, including rape, incest and to save the life of a pregnant woman. 

In Kansas, abortions are already highly regulated.  But if this proposed amendment passes, the majority in the Kansas state legislature can — and will — pass laws totally banning abortions in Kansas, with no exceptions.  So, if a woman gets pregnant by her rapist, she can’t choose to have an abortion if this proposed amendment passes.  If a young girl gets pregnant by her uncle, neither she (nor her parents) can choose to have an abortion if this proposed amendment passes.  Or if a pregnant woman is at risk of death should the pregnancy continue (e.g., in the case of ectopic pregnancies), she can’t choose to have an abortion if this proposed amendment passes — meaning she can’t choose her own life over the life of an unborn fetus.

This amendment will pave the way for politicians in Topeka to ban abortion care to anyone who can get pregnant, including women, trans men and nonbinary folks.

How did we get here? 

In 1973, the Supreme Court decided Roe v. Wade, in which the Supreme Court held that our U.S. Constitution protects the right to access abortion care, and the restrictions the government can place on that access depend upon in the trimester of pregnancy.  Then, in Planned Parenthood v. Casey (1992), the Supreme Court reaffirmed the right to access abortion care, holding that the government cannot unduly burden that right.

In recent times, some current members of the Supreme Court have indicated a desire to either limit Roe (Chief Justice John Roberts) or overturn the case entirely (Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanagh).  And that’s likely to happen in June when the Supreme Court decides Dobbs v. Jackson Women’s Health Organization.  Many legal scholars and observers believe the Supreme Court will overturn Roe v. Wade in Dobbs.  If that happens, those who get pregnant will have no federal constitutional right to access abortion care.

Three years ago, though, anticipating the Court might overturn Roe, our Kansas Supreme Court held that our state constitution protects access to abortion care.  The Kansas Supreme Court based the constitutional right to abortion access on our Kansas state constitution, rather than our United States federal constitution.  That way, if Roe is overturned, Kansans would still have a constitutional right — a state constitutional right — to abortion care.  This case is the reason the Republican-led state legislature is seeking to amend our state constitution — to strip Kansans of any constitutional right to abortion care and make way for a total ban on all abortions in Kansas.

The proposed amendment is on the Aug. 2 primary ballot, and the language of the proposed amendment is confusing.  At first glance, the language seems to imply that, while women will lose their state constitutional right to abortion, there will be exceptions in cases of rape, incest or to save the life of the pregnant woman.  However, for those reading closely, the proposed amendment actually gives politicians in Topeka the power to ban abortion in all cases, even in cases of rape, incest, or to save the life of the pregnant woman.  And those politicians in Topeka plan to do just that — ban all abortions, no matter the circumstance of the pregnancy.  With almost certainty there will be no legal abortions in Kansas — no matter how she got pregnant or even if she might die from the pregnancy.

Everyone who is eligible to vote in Kansas should vote on Aug. 2.  If you’re unaffiliated — meaning you don’t affiliate as a Republican or Democrat — you can still vote on this amendment.  In other words, you don’t have to belong to a political party to vote on this proposed constitutional amendment.  But you do need to register to vote (if you haven’t already) by July 12.  You can also request a mail-in ballot if you don’t want to actually go to the polls.  But you should vote on Aug. 2.  A “yes” vote passes the amendment, and a “no” vote defeats the amendment. 

Get registered, and vote on Aug. 2. 

Professor Amii N. Castle, J.D., is a Professor of Practice at the University of Kansas Schools of Law and Business and a lecturer at the College of Liberal Arts and Sciences. She is also the faculty advisor of the ACLU of KU.