Commonwealth Magazine | Why the Kansas ballot question on abortion matters

By Rebecca Hart Holder and Daniel Medwed
Op-ed originally published in Commonwealth Magazine

MANY PEOPLE ACROSS the United States are devastated by the Supreme Court’s decision in Dobbs, which overturned a half century of precedent and abolished the federal constitutional right to abortion. For years, many activists have channeled that despair into fighting for change at the federal level, for instance, by pressing Congress to pass laws that safeguard abortion or alter the size of the Supreme Court.

Frankly, as long as the filibuster remains in place—and as long as Congress remains fairly evenly split between Democrats and Republicans—those battles may prove difficult to win. Federal fights are good and important long-term campaigns but, for the foreseeable future, the battle for reproductive freedom is in the states.  

For those concerned about preserving reproductive justice, targeting state-level reform will reap rewards. Federal constitutional law might be seen as a floor under which states may not go; an individual state may not confer fewer protections to its residents than the Supreme Court demands. That’s one reason why Roe v. Wade was so important (and Dobbs is so damaging): That 1973 precedent ensured no state could completely cut off access to abortion.  But there’s no ceiling imposed by federal constitutional law, which means states may always grant greater rights, more robust protections, as a matter of their state constitutions than the Supreme Court requires.

Massachusetts already does this in a range of areas due to its progressive constitution and the orientation of the Supreme Judicial Court and the important work of our Legislature in response to threats to reproductive freedom. In a post-Dobbs world, states poised to protect and expand access have a unique opportunity to push the envelope on reproductive justice and enact laws that eliminate barriers to care, especially given that many will come to blue states for care. Massachusetts is not alone. In fact, even some deep-red states have liberal constitutional rules that belie their political reputations.  

Take Kansas. Section 1 of the Bill of Rights in the Kansas Constitution protects “equal and inalienable natural rights.” In 2019, the Kansas Supreme Court issued a 6-1 decision interpreting that section to provide a “right to personal autonomy, which includes the ability to control one’s own body, to assert bodily integrity, and to exercise self-determination. This right allows a woman to make her own decisions regarding her body, health, family formation, and family life—decisions that can include whether to continue a pregnancy.”

That’s right. The Kansas Supreme Court created a state constitutional right to abortion, a right Dobbs can’t touch because of our federalist governmental design and principles of state sovereignty.

Irate about that case, Kansas conservatives drafted a confusing and opaque proposed constitutional amendment that, in effect, would ban abortion in the state.  That amendment is on the ballot next Tuesday, August 2. 

Why should people from all over the United States be concerned about a relatively small state like Kansas? Here’s why: First, reports on the ground indicate this is winnable for abortion rights’ advocates. It’s much easier to play defense, to support a pre-existing right, than to go on offense and forge a new one out of whole cloth.

Second, consider the state’s location. It’s near a number of jurisdictions—Missouri, Nebraska, Oklahoma, and Texas—that are seeking to prohibit abortion entirely. Wichita is just a five-hour-plus drive from Dallas, and Tulsa is only two and a half hours away. Kansas City is easily accessible from many parts of Missouri as well as Omaha. Finally, social justice activists cannot invest solely in states like Massachusetts to remedy the Supreme Court’s decision in Dobbs. Playing the long game and rebuilding access to abortion throughout the country requires investments in blue, red, and purple states alike.    

Reproductive Equity Now is doing that by investing more time and resources in states like New Hampshire, where the right to abortion care is not specifically codified into law, as it is in Massachusetts. When you look at maps of abortion access across the country, New England is highlighted as a protected region, where the right to abortion will remain legal—but maps don’t tell the whole story. What happens in one state affects us all.

And even in a state where abortion is protected by a constitutional right like Kansas, anti-abortion advocates are finding new, creative, and deceptive ways to turn back this freedom. No state is immune—from Kansas to Massachusetts—from their crusade to ban abortion all across the country. 

Rebecca Hart Holder is executive director of Reproductive Equity Now . Daniel Medwed is University Distinguished Professor of Law and Criminal Justice at Northeastern University.