WICHITA, Kansas — A strong statewide vote in Kansas last summer in favor of abortion rights will not stop the Republican-controlled Legislature from trying to make abortion difficult this year.
Will anti-abortion lawmakers be able to impose further restrictions in this legislative session—despite the 2019 law. Kansas Supreme Court decision ruling that the state constitution protects the right to abortion depends on how aggressively they press the issue and how the Kansas courts react.
When lawmakers returned to Satehouse, Republican leaders indicated that reducing the number of abortions remained a legislative priority, but did not lay out many specific measures beyond protecting existing restrictions on abortion, already among the most stringent in the country, short of outright bans.
They also promised to send more money to crisis pregnancy centres, organizations that offer resources for women with unwanted pregnancies but usually discourage them from having abortions and are criticized for using misleading tactics.
“There are a lot of things we can do,” Senate President Ty Masterson, an Andover Republican, told a GOP leaders’ press conference Tuesday. “Probably the biggest question that needs to be answered is about autonomy, and when does a young lady in the womb get her autonomy, and what are the rights of that person, and when does it start? And I think there are questions that need to be asked.”
But legal experts said they expect to see bills that go beyond that, testing the limits of what other abortion restrictions Kansas courts can allow.
“I suspect that the Legislature will resume its previous practice of passing laws that push the boundaries of constitutionally acceptable regulation of abortion,” said University of Kansas law professor Richard Levy. “(They will want to) figure out what those boundaries are and try to limit abortion as much as possible in light of those boundaries.”
Abortion rights advocates have said they are preparing for a bitter fight over the issue in Topeka this year.
“We hope lawmakers will heed what voters had to say to their overwhelming majority driven by the August vote,” said Eileen Berquist, political director for the Kansas ACLU. “But we’ve heard everything from a 14-week ban” – Kansas bans most abortions after 22 weeks of pregnancy – “to additional provider restrictions (telemedicine restrictions).”
Branches will extend far beyond Kansas. The state remains one of the last in its region to allow abortion after the U.S. Supreme Court overturned Roe v. Wade, and has become an unlikely haven for influx of people traveling from other states seeking abortions.
This is primarily due to neighboring states such as Missouri, Oklahoma, and Texas, and their near total ban on abortion. Kansas state laws remain one of the more restrictive among the states that still allow abortions, including parental consent rules for minors and things like ultrasound requirements that effectively force women to visit a clinic in person to get abortion pills. This trip may take several hours for those who live in rural Kansas.
Kansans for Life, a well-known anti-abortion lobby group, has yet to release its legislative program for this year. But spokeswoman Danielle Underwood said increasing funding for crisis pregnancy centers is a key priority.
“We’re excited to see Kansas House and Senate Republicans boldly say they will continue to support moms and babies by supporting pregnancy resource centers,” Underwood said in an email.
Jean Gaudun, the group’s senior lobbyist, said she is still in talks with lawmakers about what other laws Kansans for Life might bring forward during the 2023 legislative session.
“We are not going to abandon women and their children,” she said. “In the past, we have supported various things, such as the elimination of abortion pills,” referring to the bill, which almost became law in 2019 this would require providers to inform patients of controversial and scientifically contested treatments designed to reverse the effects of abortion pills.
Political analysts say the Republican caucus may be less united around anti-abortion legislation than in the past, given voters’ strong opposition to last year’s anti-abortion constitutional amendment.
Neil Allen, professor of political science at Wichita State University, says it’s likely that the Republican leadership will be less focused on restricting abortion this year for this reason, but that won’t stop individual lawmakers from passing legislation on the issue.
“The Kansas legislature has made restricting abortion and making it difficult to access abortion services a priority for the past 20 years,” he said. “I don’t think that will change completely in the next session.”
Abortion pills and telemedicine
In the months since Rowe’s fall, restrictions on abortion pills have become the leading battleground in the fight for access to abortion in Kansas and across the country.
Around two-thirds abortions in Kansas and more than half of the nation’s abortions are done with medication. The Food and Drug Administration has approved a two-component regimen of mifepristone, a highly controlled drug commonly referred to as the abortion pill, followed by misoprostol to terminate pregnancies up to 10 weeks.
A bill introduced on the first day of the legislative session by Kansas Senator Mark Steffen, R-Hutchinson, would stop providers from prescribing these drugs instead of telemedicine.
This came less than two months after the Shawnee County Judge temporarily blocked the existing ban on telemedicine treatment of abortions, prompting a family planning clinic in Wichita to open telemedicine conferences with third party providers to increase the availability of appointments.
Telemedicine access to abortion pills in the traditional sense, where a patient can get a prescription without visiting a clinic, is still largely out of reach in Kansas due to a state law requiring women to have an ultrasound before having an abortion.
Maifanwy Jensen-Fellows, director of advocacy for the Trust Women’s clinic in Wichita, said she wasn’t surprised to see the latest telemedicine ban.
“What we’re seeing is the state legislature’s reaction to the progress made with the telemedicine ban,” she said.
But if the bill becomes law, it is unlikely to stand up to court challenge, said Stephen McAllister, a KU law professor and former US Attorney for Kansas under President Trump.
“In light of the[recent telemedicine ruling]I don’t see how this could come into effect,” he said.
Ban for 15 weeks; law of live birth
This session discusses more restrictive anti-abortion laws, such as the 15-week ban or the live birth law, which echoes legislation passed by the US House of Representatives this week.
This will require doctors to provide medical care to babies born prematurely after an attempted abortion. Critics say such legislation is politically motivated and medically unsound.
“We don’t see these situations in abortion clinics,” said Iman Alsaden, chief medical officer for Planned Parenthood Great Plains.
Legal experts have said that if similar proposals become law in Kansas, they are unlikely to survive litigation.
“It’s not impossible,” Levy said, “but I think it’s unlikely.”
McAllister said they are likely to be defeated in court before they go into effect.
“These lawsuits will probably go from the district judge straight to the (Kansas) Supreme Court,” he said. “I think the decision will be made pretty quickly.”
Any anti-abortion legislation passed by the State House is likely to be vetoed by Democratic Gov. Laura Kelly. Repealing this would require a two-thirds majority in both the House of Representatives and the Senate.
Republicans have retained overwhelming majorities in both houses, but that doesn’t mean the caucus will be united on a potential bill, especially not long after voters overwhelmingly opted to defend abortion rights.
Allen, a political science professor, said Republicans from politically moderate districts may be more careful to support more restrictions on abortion this year.
“They have different incentives,” he said. “These people will have to think very hard about whether they want to continue supporting abortion restrictions.”
And while in the past Republicans may have been able to convince a few Democrats to vote to limit abortion, that may be less likely in light of last year’s referendum.
“Of course, there are Democratic members of the Kansas Legislature who personally oppose abortion, but I don’t know any of them who oppose a woman’s right to make her own decisions regarding reproductive health,” said Rep. John Carmichael. Democrat from Wichita. “That means you won’t see support from Democratic lawmakers in either house for further restrictions on abortion services.”
Anti-abortion protesters may make progress this year on changing the judicial system, which may have been the main stumbling block to tougher restrictions on abortion in Kansas.
All seven Kansas Supreme Court justices survived the November retention vote, despite Kansans for Life’s opposition to all but one.
But lawmakers are set to consider legislation that would give the governor more power to choose Supreme Court judges — something that could help abortion opponents once Kelly leaves office.
Attorney General Chris Kobach, a staunch anti-abortion proponent who promised to make Kansas a “pro-life state in America,” proposed changes to the judge selection process, such as direct election and Senate confirmation, that would make it easier for abortion judges to sit on the state’s highest court.
“The goal is to remove from the bench those people who would vote to continue defending the right to abortion,” McAllister said.
A focus on the judiciary can allow legislators to move the conversation away from explicit discussions of abortion rights and into areas they may find more politically advantageous, such as education or criminal justice, while still influencing abortion policy.
“The leadership in the House and Senate would probably be happy if, instead of talking about the specifics of restricting abortion,” Allen said, “we talked about limiting the power of judges.”
Mary Ziegler, a UC Davis law professor and historian of the anti-abortion movement, said the effort in Kansas reflects the debate going on around the country over the power and composition of the judiciary.
“The more we go to the state supreme courts to discuss constitutional disagreements about abortion,” she said, “the more we will see the debate escalate around the state supreme courts.”
Rose Conlon reports on health for KMUW and the Kansas News Service. You can follow her on Twitter at @rosebconlon or email her at [email protected].
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