Jurisprudence

Kansas Voters Were the First to See the Brutal Reality of Abortion Bans—and Rebuke It

Abortion rights advocates cheer and cry with joy.
Abortion rights advocates celebrate the results of the Kansas referendum. DAVE KAUP/Getty Images

Back in 2012, Republican Rep. Todd Akin, in the midst of what would prove to be an unsuccessful Senate run, tried to assure us that in cases of “legitimate rape,” pregnancy wasn’t a possibility because it was a known fact that “the female body has ways to try to shut the whole thing down.” He was, of course, obscenely wrong. But ten years later, facing a national reproductive freedom landscape that suddenly made Akin sound like a radical feminist, the people of Kansas—voting on an amendment that would have removed abortion rights from their state constitution—showed that the body politic is, in fact, capable of shutting down laws that are dangerous, lethal, and poisonous.

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In a surprise landslide, Kansans overwhelmingly rejected the amendment. The American people still have ways to stop violence against women dressed up in the sanctimonious guise of coddling and protecting them. And that means that maybe democracy isn’t quite as far gone as some of us had believed.

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Even in a state in which Republican voters vastly outnumber Democrats, even in the midst of a primary contest in which highly motivated GOP voters were favored to turn out to the polls in disproportionate numbers, and even with deceptive last-minute texts to voters suggesting that a “yes” vote on the amendment would protect “choice,” Kansans stood up and showed up. In so doing, they roundly vanquished what might have been the first of many state efforts to capitalize on the 5–4 Supreme Court’s offer to “return the issue of abortion to the people’s elected representatives.”

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If anything, the fact that more voters cast a ballot on the Kansas abortion referendum than have ever voted in the midterm general elections there suggests that every single hot take to which we have been treated over the years—about how reproductive freedom is a toxic issue, and women don’t vote on it, and the fall of Roe v. Wade would be more demoralizing than mobilizing for progressives—has been completely wrongheaded. There are lessons to be learned here beyond mere surprise and delight.

The newest polling from Gallup suggests that abortion has become a newly salient issue this summer, and that the gender gap between men and women on the issue of abortion has increased since Dobbs v. Jackson Women’s Health Organization overruled Roe in June. This was borne out in Kansas, where voter registration surged among women after Dobbs. Efforts of those who have taken the position that forced birth is somehow pleasant and rewarding, even for America’s 10-year-old rape victims, have backfired spectacularly, as have their claims that abortion rights advocates are lying about new dangers that abortion bans pose to patients with high-risk pregnancies or who are experiencing a miscarriage.

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For the last six weeks, Republicans have touted their vision of a post-Roe America. It is a place in which rapists get to choose the mother of their children, even if she is 10 years old; in which patients must be dying of sepsis before they can terminate a failing pregnancy; in which doctors who follow their duty of care to perform a life-saving abortion must persuade prosecutors of their proper judgment at risk of incarceration; and in which pharmacists refuse to provide women with autoimmune treatment because they suspect it could be used for an illicit abortion. This reality unfolded in under a month, because it’s the fondest dream of a small minority of uncompromising extremists.

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In under a month, even Americans who call themselves abortion opponents have come to see that when abortion is criminal, every uterus is a potential crime scene. Kansans who showed up at the polls this week were able to see and understand what that reality looks like on the ground in neighboring states like Missouri, where one hospital system temporarily denied Plan B to rape victims for fear of violating the state’s abortion ban. These Kansans realized that courts and legislatures are captive to a dangerous minoritarian crusade that has nothing to do with women’s choice, women’s health, or American liberty. Faced with an up-or-down vote on this crusade, they said: absolutely not.

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Contrary to Republican claims, Tuesday’s vote will not automatically transform Kansas into an abortion mecca. Access to reproductive health care in the state remains limited. Currently, only four clinics provide such services, all in the Wichita and Kansas City areas. Existing restrictions limit abortions after 22 weeks to situations in which the mother’s life is in danger. The state still imposes mandatory ultrasounds, anti-abortion counseling, and a 24-hour waiting period. (All of these laws, however, are newly vulnerable to invalidation under a state constitution that—with voters’ assent—protects reproductive health as a fundamental right.)

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The structural conditions that led us to this summer’s Dobbs decision still exist nationwide. The anti-abortion zealots who lost so resoundingly at the ballot box in Kansas will draw from this defeat the conclusion that they can still prevail in their efforts at theocratic minority rule through yet more capture of courts and state legislatures. They will continue to manipulate the countermajoritarian levers of democracy to achieve these aims, locking in their power through yet more gerrymandering and voter suppression. Indeed, many Kansans who voted down abortion restrictions this week, also advanced the electoral fortunes of the state’s master vote suppressor, Kris Kobach, who inches closer to his bid for state attorney general. Kansas giveth, yes, and Kansas also taketh away.

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But if there is a lesson to be gleaned from Tuesday’s showing, it’s that Democrats avoid the issue of Dobbs, reproductive freedom, bodily autonomy, and women’s rights at their own political peril. When abortion triumphs by double digits in ruby red Kansas—in an election rigged in multiple ways to defeat it—the post-Dobbs conventional political wisdom needs to be set on fire.

In his callous Dobbs opinion, Justice Samuel Alito shrugged off the relevance of public opinion, the economic equality fostered by access to reproductive freedom, and women’s reliance interests on the protections afforded to them in Roe. He deemed these factors unknowable and irrelevant—though the triumphant, even celebratory tone of his decision revealed a conviction that the American people would celebrate his assault on individual liberty, or at minimum accede to it quietly. American women were invisible to the majority in Dobbs, but they were not invisible on Tuesday as they flocked to the polls in droves, eager to stave off the trauma and horror that abortion bans are designed to inflict upon their bodies.

Dobbs surfaced a fundamental democracy problem: a distortion of the popular will, and a corruption of ideas about liberty, imposed on an unwilling country by a reckless court and enabled by a broken elections system. What we now know is that while constitutional democracy helped dig us into the Dobbs hole, it may still be capable of digging us out.

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