TOPEKA, Kansas — Abortion opponents are moving with unusual speed to put a proposed pro-life amendment to the state constitution on the ballot, fearing a COVID-19 outbreak could thwart them if they delay action even for a few weeks.
The proposed amendment would overturn a Kansas Supreme Court decision in 2019 that declared access to abortion a “fundamental” right under the state constitution’s Bill of Rights. It would declare that there is no Kansas constitutional right to abortion and preserve the Legislature’s power to regulate abortion.
House and Senate committees had hearings on separate but identical versions of the proposed amendment Friday, at the end of the first week of the Legislature’s annual 90-day session. One or both chambers could debate the measure later this week.
The push for quick action reflects pro-life advocates’ eagerness to take advantage of election results last year that left Republican supermajorities in both chambers more conservative. They also want to launch a campaign to counter messages that the amendment would mean an outright abortion ban. The pandemic has created a sense of urgency — and a fear that a COVID-19 outbreak at the Statehouse is all but inevitable.
Abortion opponents already have an example of the pandemic upending their plans. The same proposed amendment failed narrowly last year in the House, and anti-abortion groups were working on getting a few lawmakers to switch to yes when the COVID-19 pandemic reached the state in March. The Legislature shortened its session, and abortion foes didn’t get the chance, preventing voters from deciding the amendment’s fate last year.
“We don’t know what’s going to happen in terms of whether we’ll be able to have a full session,” said Jeanne Gawdun, lobbyist for Kansans for Life, the most influential pro-life group at the Statehouse.
Abortion rights supporters already are arguing that the proposed amendment is a major step toward a state ban on abortion.
The measure says that the Legislature could regulate abortion “to the extent permitted” by the U.S. Constitution, meaning it would depend on U.S. Supreme Court decisions. Abortion rights supporters anticipate that the high court, with three appointees of President Donald Trump solidifying a conservative majority, will overturn the 1973 Roe v. Wade decision protecting abortion rights.
“We’re concerned because we can see the writing on the wall,” Rachel Sweet, a lobbyist for Planned Parenthood Great Plains, told a House committee.
But pro-life groups and legislators argue that past U.S. Supreme Court decisions show that overturning Roe v. Wade far from a given. And they said they’re simply trying to preserve restrictions that have passed with bipartisan support from future court challenges, including clinic regulations, a 24-hour waiting period and a requirement that most minors notify a parent or guardian.
“We have to walk them (voters) through, ’No, this is not a ban. All it does is allow the Legislature to do what it has always done,” said Brandi Jones, advocacy director for the pro-life Family Policy Alliance of Kansas. “It’s a more complicated message.”
Supporters want to put the proposal on the ballot in the August 2022 primary, so that taking a few weeks more to consider it — or the full legislative session — wouldn’t affect that timing. But getting the measure on the ballot will require two-thirds majorities in both chambers, and pro-life lawmakers and groups worry that even a few absences among their ranks caused by COVID-19 would prevent its passage, particularly in the House.
The pandemic is shaping how GOP leaders view work on other issues as well. The Senate suspended its rules Thursday so that members could take “emergency” final action immediately on a bill extending a law governing the state’s pandemic response and a bill aimed at holding down local property taxes, rather than waiting until Tuesday. Such a move is common at the end of a legislative session when time is running out, but unusual for the first week.
And Kansas lawmakers have only to look to neighboring Missouri, where the state House suspended operations for this week because of a COVID-19 outbreak. In Kansas, final action on a bill requires lawmakers to be in the House or Senate chamber or its galleries to vote.
“An absence is the same as a no,” said Rep. Stephanie Clayton, an Overland Park Democrat who opposes the constitutional amendment on abortion. “They have to make sure this takes place before all of our health declines in such a way that we’re not able to come to work and, you know, time’s running out on that.”
The proposed amendment failed in the House last year when a few Republicans and Democrats in heavily Catholic districts objected to putting it on the ballot for the narrower, more conservative primary electorate rather than the broader, more centrist November electorate. Abortion foes believe the issue is less of an obstacle this year because many of the objecting lawmakers either retired or were defeated.
“The voters spoke very loud and clearly and we are taking that to heart,” said House Majority Leader Dan Hawkins, a Wichita Republican.