Unlikely that amendment could be overturned or that court challenge would prevail, law professor says
Democratic members of the Kansas Legislature are already considering next steps if voters on Tuesday approve the proposed constitutional amendment that would allow politicians to ban abortion in the state.
The vote, which has garnered national attention, would have strong, sweeping implications on abortion access for Kansans and residents of surrounding states in which abortion bans are now pushing patients to Kansas for health care.
Polling shows the proposal that would allow the banning of abortion had a slight lead among the state’s voters as of July 20.
“This vote is final, and that’s why it’s so important that Kansans take time to read the amendment and understand what will happen next if we add this language to our constitution,” state Senate Minority Leader Dinah Sykes (D-Lenexa) said.
“It will lead to a ban on abortion with no exceptions, and Kansans won’t be able to vote on that law or challenge it if we adopt this amendment.”
Although Senate Majority Leader Larry Allen (R-Winfield) said Senate Republicans are still discussing their priorities, one bill is already written that would criminalize all abortions, regardless of whether the patient was a victim of rape or incest, or if the pregnancy could kill them. The only exceptions in that bill are for miscarriages, stillbirths and ectopic pregnancies. The bill died in committee during the most recent legislative session because it was unconstitutional; however, if the amendment passes on Tuesday (a “yes” vote), proponents have recently reminded the public that the bill is ready to go.
If the amendment passes, there will be little to no opportunity anytime soon for it to be reversed or overturned, because of the Republican-dominated Legislature.
The amendment is not a partisan issue, and all registered Kansas voters — including those who are unaffiliated — may cast their ballots on Tuesday. But Republican legislators in 2021 voted with more than the required two-thirds majorities in the House and Senate to place the amendment on Kansans’ ballots. Now in the hands of voters, the amendment would only require a simple majority (50% plus one vote) to pass.
Amendments and laws can eventually be reversed by legislative and voter action. But that’s unlikely, given the state’s current political makeup.
“The process to unamend the Constitution would be the same as the process to amend it,” KU law professor Richard Levy said. “In other words, a resolution would have to be passed by a supermajority in both the Kansas House of Representatives and the Kansas Senate.”
A supermajority that favors abortion access is far off in Kansas for the time being, making the Aug. 2 vote the last opportunity to protect current reproductive health care rights, along with the current restrictions that are in place.
“Because 39 of the 40 Senators are in the middle of their four-year terms, the makeup of the Senate is set for the next two years and will continue to have a strong majority that has shown to favor restrictions on abortions,” state Sen. Marci Francisco (D-Lawrence) said.
Although overturning the amendment is unlikely, there is the possibility that a group could challenge the amendment’s validity under the theory that it was misleading.
“Succeeding on such a claim would likely require strong evidence that voters were actually misled as to the meaning or consequences of the amendment,” Levy said.
Opponents of the amendment have argued the wording on the ballot is misleading. During the legislative session, Francisco introduced an amendment to change the wording on the ballot, although it did not pass.
But even though the argument has been founded, Levy said the legal ground for the case is weak.
“There is some support for that sort of claim in other states,” he said, “but such cases are hard to win and the facts, in this case, are not especially strong.”
Should the amendment be defeated, Francisco believes it could be a while until Republicans in the Legislature put together another attempt to amend the constitution.
“I believe it will be some time before a new challenge,” she said. “How could Republicans come up with a better chance than they had this year, scheduling the election to be on the same date as a primary election for House members and getting confusing language for the ballot?”
Democrats’ focus remains on Tuesday’s vote as the last opportunity for Kansas voters to protect the state’s current abortion rights.
“Our constitution allows Kansans — not politicians in Topeka — to make personal health care decisions for themselves,” Sykes said.
“This amendment would give that power entirely to the Republican Legislature, and they are misleading the public in order to get that power. They will ban abortion, and voting ‘no’ on this amendment is the only thing Kansans can do to stop that from happening.”
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Cuyler Dunn (he/him), a contributor to The Lawrence Times, is a student at the University of Kansas School of Journalism. He is a graduate of Lawrence High School where he was the editor-in-chief of the school’s newspaper, The Budget, and was named the 2022 Kansas High School Journalist of the Year. Read more of this work for the Times here.