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Kansas No Right to Abortion in Constitution Amendment (2020)

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Kansas No Right to Abortion in Constitution Amendment
Flag of Kansas.png
Election date
August 4, 2020
Topic
Abortion
Status
Not on the ballot
Type
Constitutional amendment		Origin
State legislature

The Kansas No Right to Abortion in Constitution Amendment did not appear on the ballot in Kansas as a legislatively referred constitutional amendment on August 4, 2020.

The measure would have amended the Kansas Constitution to state that there is no right to abortion or public funding for abortions in the Kansas Constitution and that citizens through their elected representatives have the right to regulate abortions. The proposed amendment was a response to the 2019 Kansas Supreme Court ruling in Hodes & Nauser v. Schmidt, which concluded that there was a right to abortions in the Kansas Bill of Rights.

Proponents referred to the measure as the "Value Them Both Amendment."[1]

Text of measure

Constitutional changes

See also: Bill of Rights, Kansas Constitution

The measure would have amended the Bill of Rights of the Kansas Constitution. The following section would have been added to the end of the Bill of Rights:[1]

§ 22. Regulation of abortion. Because Kansans value both women and children, the constitution of the state of Kansas does not require government funding of abortion and does not create or secure a right to abortion. To the extent permitted by the constitution of the United States, the people, through their elected state representatives and state senators, may pass laws regarding abortion, including, but not limited to, in circumstances of pregnancy resulting from rape or incest, or when necessary to save the life of the mother.[2]

Support

Supporters

Arguments

  • Susan Wagle (R), president of the Kansas Senate, said, "Gov. Kelly is very concerned about women's rights. She's concerned about the mom's heartbeat, and we stand here as the pro-life community concerned about two heartbeats, the mom and the baby inside the womb."[4]
  • Renee Erickson (R), a state representative from Wichita, said, "Basically [what the amendment] does is it takes it back to what it was before the Supreme Court made their ruling. We want safeguards. We want to make sure abortions are safe and rare in Kansas."[5]

Opposition

Opponents

Arguments

  • Laura Kelly, the governor of Kansas, said, "I fear for a future in which the Legislature chooses to stand between a woman and her doctor. This would throw the state back into the Dark Ages."[4]
  • Sandy Brown, director of the Kansas Abortion Fund, said, "Kansans deserve the right to make our own personal, private medical decisions without politicians’ interference. ... Our constitutional right to make decisions for our bodies, our lives and our futures should never be up for a vote."[6]

Background

Kansas Supreme Court ruling on abortion rights

The Kansas Supreme Court ruled in Hodes & Nauser v. Schmidt (2019) that Section 1 of the Kansas Bill of Rights included "a woman's right to make decisions about her body, including the decision whether to continue her pregnancy." Section 1 was part of the original Kansas Constitution of 1861, reading, "All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness."[7] Senate President Susan Wagle (R-30) said a ballot measure to amend the state constitution in response to the ruling was possible. Sen. Wagle stated, "I think the consequences of that ruling are still being determined. We really need some time to figure out how we’ll address it and I think the voters of Kansas will want to have a say in an election year."[8]

The status of abortion rights across the states

As of June 2022, at least nine states provided a state constitutional right to abortion based on court rulings.[9] Ballotpedia has identified six ballot measures to amend state constitutions to declare that nothing in the state constitution provides a right to abortion. In Tennessee (2014), Alabama (2018), West Virginia (2018), and Louisiana (2020), these constitutional amendments were passed. In Massachusetts (1986) and Florida (2012), these constitutional amendments were defeated.

The following map illustrates the states where courts have ruled that a right to abortion exists under the state constitution and states with constitutional amendments stating that no right to abortion exists under the state constitution:

Rulings for state constitutional rights

At least nine states provide a right to abortion under their state constitutions based on court rulings. None of these states provide an explicit constitutional right to abortion; rather, state courts have ruled that provisions related to privacy, liberty, and equality provide a right to abortion. The following is a list of states where courts have ruled that state constitutions provide a right to abortion:[9]

  • Alaska: In Valley Hospital Association v. Mat-Su Coalition for Choice (1997), the Alaska Supreme Court ruled that Amendment 3 (1972), which declared that people have a right to privacy, provided a right to abortion.[10] Attorney General Kevin Clarkson (R), appointed in 2018, said, "Basically, Alaska provides more protection for abortion rights than the federal Constitution. So if Roe vs. Wade were overturned, in Alaska, nothing would change. ... What could change things in Alaska to move it towards a more protective-of-life perspective would be an amendment to the Alaska Constitution."[11]
  • California: In People v. Belous (1969), the California Supreme Court ruled that women have "[constitutional] rights to life and to choose whether to bear children." The court's ruling stated that "the fundamental right of the woman to choose whether to bear children follows from the Supreme Court's and this court's repeated acknowledgment of a 'right of privacy' or 'liberty' in matters related to marriage, family, and sex."[12] Voters approved Proposition 11 in 1972. The proposition established a constitutional right to privacy. The state Supreme Court cited Proposition 11 in Committee to Defend Reproductive Rights v. Myers (1981), which stated that "the protection afforded the woman's right of procreative choice as an aspect of the right of privacy under the explicit provisions of our Constitution."[13] In 2002, the California State Legislature passed the Reproductive Privacy Act, which added language to state statute declaring that women have a "fundamental right to choose to bear a child or to choose and to obtain an abortion."[14]
  • Florida: The Florida Supreme Court decided the case In re T.W., a Minor in 1989, holding that Amendment 2, passed in 1980, included a right to abortion before viability. The state Supreme Court's ruling said that Amendment 2, which established a state constitutional right to privacy, "is clearly implicated in a woman's decision of whether or not to continue her pregnancy."[15] In 2004, the Florida State Legislature referred Amendment 1, which required parental notification for a minor to receive an abortion, to the ballot.[16] Amendment 1 exempted the notification from the constitutional right to privacy. Voters approved Amendment 1. In 2011, the state legislature referred Amendment 6 to the ballot for November 6, 2012. Amendment 6 contained a provision that stated, "This constitution may not be interpreted to create broader rights to an abortion than those contained in the United States Constitution."[17] Voters rejected Amendment 6.
  • Illinois: In Hope Clinic for Women, Ltd. v. Flores (2013), the Illinois Supreme Court held that the state constitution's due process clause guarantees a right to abortion. The majority wrote, "[W]e find no state grounds for deviating from the United States Supreme Court's interpretation that the federal due process clause protects a woman's right to an abortion. Therefore, at this time, we interpret our state due process clause to provide protections, with respect to abortion, equivalent to those provided by the federal due process clause."[18]
  • Massachusetts: In Moe v. Secretary of Administration and Finance (1981), the Massachusetts Supreme Judicial Court held that "the Massachusetts Declaration of Rights affords a greater degree of protection to a woman's right to decide whether or not to terminate a pregnancy by abortion than does the Federal Constitution."[19] The Massachusetts General Court referred a constitutional amendment to the ballot in 1986, which stated, "Nothing in this Constitution shall prevent the General Court from regulating or prohibiting abortion unless prohibited by the United States Constitution, nor shall anything in this Constitution require public or private funding of abortion, or the provision of services or facilities therefor, beyond that required by the United States Constitution."[20]
  • Minnesota: The Minnesota Supreme Court ruled in Women of Minnesota v. Gomez (1995) that "under our interpretation of the Minnesota Constitution's guaranteed right to privacy, the difficult decision whether to obtain a therapeutic abortion will not be made by the government, but will be left to the woman and her doctor." The state Supreme Court cited Sections 2, 7, and 10 of Article I of the Minnesota Constitution to determine that women had a constitutional right to abortion.[21]
  • Montana: In Armstrong v. State (1999), the Montana Supreme Court held that Section 10 of Article II of the Montana Constitution provided women with a right to procreative autonomy, including an abortion before fetal viability. Section 10 read, "The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest." The provision was included as part of the 1972 Montana Constitution.[22]
  • New Jersey: In 2000, the New Jersey Supreme Court ruled that abortion is a state constitutional right in Planned Parenthood of Central New Jersey v. Farmer. The ruling stated that Section 1 of Article I of the New Jersey Constitution "incorporates within its terms the right of privacy and its concomitant rights, including a woman's right to make certain fundamental choices."[23]

Amendments declaring no state constitutional rights

As of January 2022, four states had constitutional amendments declaring that their constitutions do not secure or protect a right to abortion or require the funding of abortion. The first state to pass a constitutional amendment was Tennessee in 2014. In 2018, Alabama and West Virginia passed constitutional amendments. In 2020, Louisiana voters approved Amendment 1. Arkansas has a constitutional amendment, passed in 1988, that says, "The policy of Arkansas is to protect the life of every unborn child from conception until birth, to the extent permitted by the Federal Constitution."

  • Tennessee Amendment 1 (2014): Amendment 1 received 52.6 percent of the vote, making Tennessee the first state with an amendment proclaiming that the state constitution does not secure or protect a right to abortion or require the funding of abortion. Amendment 1 was proposed as a response to the Tennessee Supreme Court's ruling in Planned Parenthood v. Sundquist (2000), which held that the state constitution provided a right to procreational autonomy. Sen. Mae Beavers (R-17), who was a legislative sponsor of Amendment 1, said, "[The amendment] is meant to neutralize the 2000 [state] Supreme Court decision."[24]
  • Alabama Amendment 2 (2018): Amendment 2 received 59.0 percent of the vote. Amendment 2 declared that the state constitution does not secure or protect a right to abortion or require the funding of abortion. The constitutional amendment also said the state's public policy was to "recognize and support the sanctity of unborn life and the rights of unborn children, including the right to life." In the Alabama State Legislature, Amendment 2 received a unanimous vote from the Republicans. Three Democrats voted in favor of the amendment, and 31 opposed it.[25]
  • West Virginia Amendment 1 (2018): Amendment 1 passed with 51.7 percent of the vote. Amendment 1 declared that the state constitution does not secure or protect a right to abortion or require the funding of abortion. According to the West Virginia Bureau for Medical Services, Amendment 1 invalidated the state Supreme Court's ruling in West Virginia Women’s Health Center v. Panepinto (1993), which held that the state had to fund abortion via Medicaid.[26] Legislative Republicans voted to put the constitutional amendment on the ballot. In the House, three Democrats voted in favor of it, and nine voted against it. In the Senate, 10 Democrats voted in favor of it, and 25 voted against it.[27]
  • Louisiana Amendment 1 (2020): Amendment 1 passed with 62.1 percent of the vote. Amendment 1 added language to the Louisiana Constitution stating that "nothing in this constitution shall be construed to secure or protect a right to abortion or require the funding of abortion."[28]

Ruling for state constitutional right overturned

In 2018, the Iowa Supreme Court held that women have a state constitutional right to abortion in Planned Parenthood v. Reynolds. Chief Justice Mark Cady wrote, "Autonomy and dominion over one’s body go to the very heart of what it means to be free. ... We therefore hold, under the Iowa Constitution, that implicit in the concept of ordered liberty is the ability to decide whether to continue or terminate a pregnancy."[29] During the 2019 legislative session, several joint resolutions were introduced to amend the Iowa Constitution to state that nothing in the constitution secured or protected a right to abortion or abortion funding. However, none of the resolutions were passed.[30]

On June 17, 2022, the state Supreme Court overturned its 2018 decision arguing that the former ruling establishing a right to abortion "insufficiently recognizes that future human lives are at stake." The ruling concerned a 2020 law authorizing a 24-hour waiting period before an abortion. Since the 2018 ruling, Gov. Kim Reynolds (R) has appointed four of the seven justices.[31]


Referred amendments on the ballot

From 1995 through 2019, the Kansas Legislature referred 10 constitutional amendments to the ballot. Voters approved eight and rejected two of the referred amendments. Most of the amendments (7 of 10) were referred to ballots in even-numbered election years. The average number of amendments appearing on an odd-year ballot was between zero and one. The approval rate at the ballot box was 80 percent during the 23-year period from 1995 through 2019. The rejection rate was 20 percent. One referred amendment was on the ballot in 2019.

Legislatively referred constitutional amendments, 1995-2019
Years Total number Approved Percent approved Defeated Percent defeated Annual average[32] Annual minimum[33] Annual maximum[34]
Even years 7 6 85.7% 1 14.3% 0.6 0 2
Odd years 3 2 66.7% 1 33.3% 0.2 0 1
All
years		 10 8 80.0% 2 20.0% 0.4 0 2

Path to the ballot

See also: Amending the Kansas Constitution

In Kansas, a two-thirds vote of all members in each chamber of the Kansas State Legislature during one legislative session is required to refer a constitutional amendment to the ballot for voter consideration.

The judiciary committee of the Kansas State Senate introduced the constitutional amendment into the state legislature as Senate Concurrent Resolution 1613 (SCR 1613) on January 16, 2020.[1]

On January 29, 2020, the state Senate passed SCR 1613 with a vote of 28 to 12. The measure was introduced in the state House on January 30, 2020. On February 7, the House vote failed to meet the two-thirds requirement to pass. The vote tally was 80-43.[35]

Vote in the Kansas State Senate
January 29, 2020
Requirement: Two-thirds (66.67 percent) vote of all members in each chamber
Number of yes votes required: 27  Approveda
YesNoNot voting
Total28120
Total percent70.00%30.00%0.00%
Democrat0110
Republican2810
Independent000
Vote in the Kansas House of Representatives
February 7, 2020
Requirement: Two-thirds (66.67 percent) vote of all members in each chamber
Number of yes votes required: 84  Defeatedd
YesNoNot voting
Total80432
Total percent64.00%34.40%1.60%
Democrat0392
Republican8040


See also

External links

Footnotes

  1. ↑ 1.0 1.1 1.2 Kansas Legislature, "Senate Concurrent Resolution 1613," accessed January 31, 2020
  2. ↑ Note: This text is quoted verbatim from the original source.
  3. ↑ The Topeka Capital-Journal, "Kansas Senate passes constitutional amendment on abortion," January 29, 2020
  4. ↑ 4.0 4.1 4.2 4.3 New York Times, "Governor: Abortion Measure Would Put Kansas in 'Dark Ages'," January 30, 2020
  5. ↑ 5.0 5.1 5.2 KWCH, "Governor urges KS House to vote down amendment concerning abortion rights," January 30, 2020
  6. ↑ 6.0 6.1 Pratt Tribune, "House, Senate committees move swiftly to advance abortion amendment," January 22, 2020
  7. ↑ Kansas Supreme Court, Hodes & Nauser v. Schmidt, April 26, 2019
  8. ↑ The Wichita Eagle, "Abortion opponents say they’ll wait until 2020 to seek to change Kansas constitution," May 3, 2019
  9. ↑ 9.0 9.1 The Guttmacher Institute, "Ensuring Access to Abortion at the State Level: Selected Examples and Lessons," January 9, 2019
  10. ↑ Alaska Supreme Court, Valley Hospital Association v. Mat-Su Coalition for Choice, November 21, 1997
  11. ↑ Alaska Public Media, "What happens if Roe v. Wade goes? In Alaska, ‘nothing’," September 10, 2018
  12. ↑ California Supreme Court, "People v. Belous, September 5, 1969
  13. ↑ California Supreme Court, "Committee to Defend Reproductive Rights v. Myers," March 20, 1981
  14. ↑ California State Legislature, "Reproductive Privacy Act," September 5, 2002
  15. ↑ Florida Supreme Court, In re T.W., a Minor, October 5, 1989
  16. ↑ Florida State Legislature, "House Joint Resolution 1," accessed June 25, 2019
  17. ↑ Florida State Legislature, "House Joint Resolution 1179," accessed June 25, 2019
  18. ↑ Case Text, Hope Clinic for Women, Ltd. v. Flores, July 11, 2013
  19. ↑ Massachusetts Supreme Judicial Court, "Moe v. Secretary of Administration and Finance," February 18, 1981
  20. ↑ Massachusetts General Court, "House Bill 3310," accessed June 25, 2019
  21. ↑ Minnesota Supreme Court, "Women of Minnesota v. Gomez," December 15, 1995
  22. ↑ Montana Supreme Court, "Armstrong v. State," October 26, 1999
  23. ↑ New Jersey Supreme Court, "Planned Parenthood of Central New Jersey v. Farmer," August 15, 2000
  24. ↑ Commercial Apparel, "Tennessee Senate advances abortion amendment," April 18, 2011
  25. ↑ Alabama State Legislature, "House Bill 98," accessed March 16, 2017
  26. ↑ West Virginia Metro News, "West Virginia’s rapid political shift on abortion," August 29, 2015
  27. ↑ West Virginia Legislature, "Senate Joint Resolution 12," accessed February 9, 2018
  28. ↑ Louisiana State Legislature, "HB 425," accessed April 24, 2019
  29. ↑ Iowa Supreme Court, "Planned Parenthood v. Reynolds," September 18, 2018
  30. ↑ Des Moines Register, "Gov. Kim Reynolds supports anti-abortion language in the Iowa Constitution," February 5, 2019
  31. ↑ CNN, "Iowa Supreme Court rules state constitution does not protect right to abortion," June 17, 2022
  32. ↑ Annual averages refers to the average number of referred amendments appearing on ballots between 1995 to 2019.
  33. ↑ Annual minimum refers to the lowest number of referred amendments on ballots between 1995 to 2019.
  34. ↑ Annual maximum refers to the highest number of referred amendments on ballots between 1995 to 2019.
  35. ↑ Kansas Legislature, "SCR 1613 Status," accessed January 30, 2020
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