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Some US State Constitutions Protect Abortion Rights Despite Being in Anti-Abortion States

On August 2, 2022, the people of the US state of Kansas voted to keep the right to abortion care protected throughout the state. They did this by voting against a proposed measure that would have amended the state’s constitution, which protects the right to choose, so that it no longer would protect that right. Kansas voters came out on droves to participate in this vote, despite the event being a primary election, which generally draws far fewer voters than a general election. This was the first test of how the recent Supreme Court of the United States (SCOTUS) decision on the Dobbs versus Jackson Womens Health Organization abortion case may affect voting throughout the US. Issued this past June, the Dobbs decision involved a Mississippi law prohibiting abortions beyond a gestational age of 15 weeks. While six justices voted to uphold the Mississippi law (and three voted against it), five of those six justices also vote to overturn the Roe V Wade decision of 1973. The majority decision that overturned Roe, and which made no sense in terms of all previous jurisprudence related to the issue, was authored by Associate Justice Samuel Alito. Alito is a justice who —when serving on the US Third Circuit Court of Appeals when another abortion case, Planned Parenthood versus Casey, reached that appellate court on its way to the SCOTUS in the early 1990s— favored a requirement that women seeking an abortion in Pennsylvania must first notify their husbands. This, plus Alito’s majority decision in Dobbs, which references abortion cases going back to the 13th century as part of his arguments against abortion rights, illustrates how much out-of-tune he is with most people, even those living in fairly Republican states.

Kansas, is one such Republican state. Not only did Kansas vote for the Republican presidential candidate Donald Trump in the past two presidential elections, but the more recent Democratic President that the state supported was Lyndon Johnson in 1964. Moreover, although the governor of Kansas is a Democrat, both houses of the the Kansas State legislature have strong Republican majorities, and these Republican-dominated majorities are extremely anti-abortion. If not for the abortion protection afforded by the state’s constitution, the Kansas legislature would vote in prohibitions against abortion, and it might have a strong enough majority to override a veto by the governor.

But Kansas also has a long history of supporting women’s rights. Following a horrible civil war between anti-slavery and pro-slavery combatants across the Kansas territory in the 1850s that preceded the nation-wide US Civil War of the next decade, Kansas was admitted to the union as a free state. At that time, the antislavery movement overlapped in many ways with the nascent women’s suffrage movement. In line with this history, in 1919 Kansas became one of the original 36 states to ratify the 19 Amendment that would provide women the right to vote across the United States a year later. In the years just prior to the Roe v Wade decision of 1973, Kansas was one of 13 states that permitted abortion in cases when it was needed for the woman’s health, in cases of rape or incest, and also in cases in which it was likely that the fetus was not viable or would suffer from severe deformities. This was not as liberal a policy as that of abortion at the discretion of physicians, but, prior to Roe, that latter policy existed in only four states: New York, Washington, Hawaii, and Alaska. Moreover, several years ago, Kansas was a place where women were directed to receive abortion care, when their own states chiseled away at abortion rights in the years subsequent to Roe v Wade.

From a geographic perspective, the vote in Kansas is good news, not only for women with unwanted pregnancies in neighboring Missouri and Oklahoma and nearby Arkansas, where abortion bans are in effect, but also in the eastern half of Texas and much of Louisiana, from which Kansas is also the closest travel option. Kansas will welcome its neighboring abortion seekers.

Even with the Kansas constitutional guarantee in place, there are some limits that you must keep in mind, if you are seeking abortion care in Kansas. One limitation is that you must arrive at an abortion-providing facility in person. Kansas state laws to not permit telemedicine provision of abortion care. This is the case, even when it comes to medication abortions that are an option up to a gestational age of 77 days. Also, when you show up for the appointment, the facility is required to read you propaganda, worded in a way intended to scare you off. Just let them read it and then ignore it. You are also required to wait 24 hours before returning for the actual abortion care. Finally, the state does not allow insurance to pay for an abortion, unless you have purchased a particular rider policy. So the situation in Kansas is not perfect, but it would have been a lot worse if not for the recent vote. In future posts, from time to time, we’ll look at the particular abortion situation in other US states.

David Warmflash
Dr. David Warmflash is a science communicator and physician with a research background in astrobiology and space medicine. He has completed research fellowships at NASA Johnson Space Center, the University of Pennsylvania, and Brandeis University. Since 2002, he has been collaborating with The Planetary Society on experiments helping us to understand the effects of deep space radiation on life forms, and since 2011 has worked nearly full time in medical writing and science journalism. His focus area includes the emergence of new biotechnologies and their impact on biomedicine, public health, and society.

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