On 2 August 2022, a majority of voters in the State of Kansas rejected a proposed amendment to the State constitution that would have effectively reversed a 2019 Kansas Supreme Court decision holding that abortion access is a right protected by the Kansas constitution. The result of the referendum is disappointing. But it should not be read by either (or any?) side of the abortion debate as a definitive victory for the pro-abortion camp and a decisive defeat for the pro-life cause. It does, however, provide a cautionary lesson for the future of similar referenda and legislative proposals. The pro-abortion side is highly motivated, richly funded, and devoid of scruples against lying about abortion access laws.
The Kansas proposal, dubbed the “Value Them Both Amendment”, would not have made abortion illegal in Kansas. Nor, by itself, would it have had any impact on access to abortion in Kansas. Rather, the proposed amendment would have added a provision to the Kansas constitution expressly saying that the constitution “does not require government funding of abortion and does not create or secure a right to abortion”. Instead, had the amendment passed, abortion regulation would have been left to the citizens of Kansas, acting through the State legislature. This authority would expressly have included passing “laws that account for . . . pregnancy resulting from rape or incest, or circumstances of necessity to save the life of the mother”.
In other words, the amendment would merely have permitted Kansas to pass the kind of reasonable abortion access legislation that comports with the will of the broad spectrum of the citizens of Kansas and the U.S. more generally. With the defeat of the amendment, Kansas is prevented from even the most moderate regulation of abortion access, making it potentially the most extreme abortion regime in the U.S., out of step with the ambivalence of a majority of Kansans on the question of abortion.
Why, then, did such a benign provision fail? The principal reason is most likely the success of the pro-abortion side in a massive disinformation campaign. The message from the pro-abortion side was that the amendment would have banned all abortion in Kansas, despite the express language of the proposal. As in other states, the pro-abortion side persistently claimed that the amendment would have prohibited “abortion care” for women in the midst of a miscarriage, whose lives are legitimately in danger because of an abnormality in the pregnancy, or care for ectopic pregnancy.
As noted, the amendment would not have done any such thing. Nor is it remotely likely that the Kansas legislature would pass legislation that does not account for these very rare exceptional circumstances, which account for less than two percent of pregnancy terminations. Moreover, the proposed amendment expressly provided for the possibility of these exceptions to abortion access regulation. Like every other state that has passed laws protecting the lives of unborn children, the legislature in Kansas would have passed legislation providing for these concessions.
But the disinformation campaign was successful in motivating the pro-abortion true believers and confusing the vast middle, who favour some access to abortion but disfavour abortion on-demand for any reason. Of course, pro-life advocates in Kansas can try again, this time learning the lessons of the failed referendum, taking seriously the energy, finances, and dishonesty of the pro-abortion side. And pro-life citizens in other States can also learn the lesson from Kansas that careful, comprehensive education about the scope and extent of abortion regulation is essential for the protection of unborn life, consistent with the health of the mother.
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