On August 2, over 50% of voters in the US state of Kansas voted “no” on a ballot measure that would amend the state constitution to remove abortion as a protected right. The defeat of the referendum has been celebrated by progressives as an important push back against a series of anti-abortion victories nationwide.
While as many as 22 states have moved to ban abortion following the Supreme Court’s overturning of federally-protected abortion rights on June 24, Kansas has remained an unusual bulwark for abortion rights in the South and Midwestern United States. This is because in 2019, the Kansas Supreme Court ruled that the state’s constitution, in its promises of “equal and inalienable natural rights”, protected the right to a woman’s bodily autonomy. This ruling catapulted Kansas’ constitution far further in terms of human rights protections than its federal counterpart.
In response to the Kansas Supreme Court’s ruling, anti-abortion lawmakers first proposed the “Value Them Both” amendment in the state legislature, which would remove abortion rights protections from the state constitution, in 2020.
Right-wing politicians modeled “Value Them Both” after a change to the Tennessee constitution that voters approved in 2014 that makes it clear that the state’s constitution does not protect the right to an abortion. The Tennessee amendment was passed after the state’s Supreme Court ruled that the Tennessee constitution granted abortion rights.
In Kansas, the proposed amendment failed to pass in the Kansas House of Representatives. But conservative lawmakers persisted, and reintroduced the amendment in the state legislature as a resolution to hold a referendum on the matter, which state politicians passed in 2021. Thus right-wing politicians ensured that “Value Them Both” would appear on the ballot on August 2, 2022 for Kansas voters.
Misinformation fails at the ballot box
The conservative fight to pass the measure was fought with rhetorical strategy, as well as misinformation. The language of “Value Them Both” refers to the so-called “value” abortion restrictions place on both the mother and the unborn fetus through abortion restrictions. The right-wing has also long tried to frame abortion as an “industry” to tap into the dislike of corporations and concentrated power in the US. Danielle Underwood, director of communications for Kansas Right to Life, said shortly after the overturn of Roe v. Wade, “You know that Kansans are very commonsense people…We believe in reasonable limitations on the abortion industry.”
“If you’re in favor of unlimited abortion and you’re fine with abortion facilities with no inspection, sanitation, and safety standards…then you would want to vote ‘no,’” she said.
The Catholic Bishop of Wichita Kansas said during a July 12 video statement, “Without Value Them Both, the abortion industry in Kansas will be able to operate with virtually no restrictions or regulations.”
But the fight for the ballot measure was not a simple rhetorical debate. The Kansas right-wing tried to mislead and misinform voters all the way to the ballot box.
Before the vote, a misleading text message was sent to registered Democratic voters in Kansas: “Women in KS are losing their choice on reproductive rights. Voting YES on the amendment will give women a choice. Vote YES to protect women’s health.”
Voting “yes” on the ballot measure would strip the Kansas constitution of the rights of women to choose to have abortions.
This text message was linked to a Nevada firm which was funded by a former Kansas congressman’s political action committee. Since this discovery, former Kansas Congressman Tim Huelskamp has been evading the press.
The timing of the ballot was also strategic on the part of conservatives, who must have anticipated popular disapproval of the amendment. Kansas right-wing politicians decided to put the measure up for vote during the primary elections, which have historically had far lower voter turnout than the general elections. As reported in The Intercept, in 2020, 34% of Kansans voted in the primary election versus 71% in the general. Conservatives also relied on the fact that unaffiliated voters, a large percentage of Kansas voters, do not usually vote in primary elections and may not have known that they could in fact vote for this ballot measure.
This strategy backfired, as 250% more voters turned out than in the 2018 Kansas primary, and mail-in ballots doubled, as reported by Liberation News.
For many, the language on the ballot itself also seemed like it was crafted to misinform. As reported on Liberation News, the ballot itself read:
“A vote for the Value Them Both Amendment would affirm there is no Kansas constitutional right to abortion or to require the government funding of abortion, and would reserve to the people of Kansas, through their elected state legislators, the right to pass laws to regulate abortion.”
“A vote against the Value Them Both Amendment would make no changes to the constitution of the state of Kansas, and could restrict the people, through their elected state legislators, from regulating abortion by leaving in place the recently recognized right to abortion.” [emphasis added]
Kansas abortion rights activists complain that the confusion was deliberate. “If you just look at the language that was on the ballot, then you wouldn’t really know whether a yes or a no vote would be the one that’s pro-choice or anti-choice,” said Bennett Nowotny, who was on the ground mobilizing Kansans to vote against the ballot measure. “So the pro-choice side had to do a lot of education to make sure people knew which one was the pro-choice vote.”
While the right-wing ballot measure claims that it would “reserve to the people of Kansas, through their elected state legislators, the right to pass laws to regulate abortion”, Nowotny told Peoples Dispatch, that “what would really happen is the Republican-controlled legislature would immediately ban abortion.” Conservative leaders openly admitted to this strategy at a meeting of the Value Them Both Coalition, where a state senator said he would pass legislation “with my goal of life starting at conception,” the most extreme form of abortion ban.
After the outright defeat by the people of Kansas, conservatives are unlikely to put abortion rights to a popular vote anytime soon. Right-wing strategists themselves say they will focus on the courts, a far less democratic part of the US government structure. As Kristi Hamrick of Students for Life of America, an anti-abortion organization, told Politico, “We have to prioritize, and I think we’re going to prioritize lawsuits related to chemical abortion…That’s a very effective place for lawsuits for us, especially knowing that it’s the future of abortion. Everyone will have to pick and choose and that’s one we will definitely pick.”
In Kansas, abortion rights only began to be severely restricted after the 1990s. In 1991, Operation Rescue, an extremist anti-abortion organization, launched the “Summer of Mercy” in Wichita, Kansas. Anti-abortion protesters physically blocked patients from accessing abortion rights in clinics, and harassed both women and doctors. Their central target was the celebrated Dr. George Tiller, who provided abortions to women in Kansas. In 2009, Tiller was assassinated by an anti-abortion extremist.
The abortion rights struggle in Kansas is central, and is certainly not over with the defeat of Value Them Both.