Kansas’s Sketchy Abortion Vote

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Mary Harris: One way Stephen McAllister knows there’s a big vote coming up in Kansas about abortion is because of his mailbox. Every day it is stuffed with glossy flyers urging him to go to the polls.

Speaker 2: And it’s unlike anything I’ve ever seen in my time as a Kansan, which is the vast majority of my life.

Mary Harris: You sound a little exhausted by this junk mail.

Speaker 2: It is it is tiring. It comes every day. And there’s also been even handwritten notes. Some groups have gotten volunteers to write on postcards.

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Mary Harris: You’ve gotten postcards from people?

Speaker 2: Yes. Yes.

Mary Harris: Most of the mail. Stevens getting is for the amendment. For the record, right now, Kansas recognizes abortion as a state constitutional right. If this new amendment passes, that right would disappear. It would put the future of abortion access into the hands of a Republican state House supermajority. Right. The vote. It’s today.

Speaker 2: And it would mean the legislature, it’s free essentially to regulate abortion in any fashion it would choose.

Mary Harris: Steven is uncomfortable with all this. He considers himself pro-choice. There’s one more thing you need to know about Stephen, though. You’re a Republican, right?

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Speaker 2: I am. I have been registered all my life.

Mary Harris: In fact, Stephen defended some of the state’s strictest abortion laws when he worked in the state attorney general’s office. But as this amendment raced to the ballot box, he watched as his Republican colleagues played down its importance, telling voters a yes vote does not mean anything is going to change. Not right away anyway.

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Speaker 2: But no one with any sense at all or understanding of the political landscape believes that will be the case.

Mary Harris: It sounds like you’re calling your fellow Republicans a little disingenuous here.

Speaker 2: And very disingenuous. And it’s become harder to necessarily say that all of them are my fellow Republicans anymore. They’re not the Republicans I grew up with.

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Mary Harris: Today on the show in Kansas, abortion is facing its first test at the polls since the Supreme Court overturned Roe v Wade. And this fight is getting dirty. I’m Mary Harris. You’re listening to What Next? Stick around.

Mary Harris: These days in the Kansas State House, Republican lawmakers outnumber Democrats about 2 to 1. This means, as Stephen puts it, their anti-abortion agenda. It’s basically veto proof. But Kansas wasn’t always this way. Decades ago, Kansas abortion laws were some of the least restrictive nationwide. The state was even home to Dr. George Tiller, one of the few third trimester abortion providers in the country. But that didn’t sit so well with some of Kansas’s more conservative voters.

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Speaker 2: And so I think Kansans were, you know, they were never comfortable with the late term abortions. And that became an issue when Dr. George Tiller was performing late term abortions down in Wichita. So he he became sort of a lightning rod. Summer of Mercy back in the early nineties when Operation Rescue came to Wichita.

Mary Harris: Operation Rescue was an anti-abortion protest movement that was supercharged during the summer of 1991. The so-called Summer of Mercy.

Speaker 3: And the Pro-Life Action Network has labeled this clinic as headquarters for late term abortion. We are determined to stop abortion in this country, and next year will be somewhere else.

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Mary Harris: The choice of the death penalty choice the other with life. Somebody would love your baby. Somebody would care for it. Demonstrators rallied outside abortion clinics for six weeks. People physically blocked staff from getting in. Literally chaining themselves to the doors. And the city of Wichita had to assign nearly a quarter of its police force to control the protests. Some clinic workers stayed inside the clinic for 36 hours at a time, fearing that if they left, they just wouldn’t be able to return.

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Speaker 2: When Operation Rescue came to town and started doing their protests, it drew attention to Kansas. That also did something within Kansas, which was it really energized the right to life organizations within Kansas.

Mary Harris: So after this protest and after anti-abortion forces became very active in the local Republican Party, there began to be laws passed by the legislature trying to restrict abortion procedures in the state in all kinds of ways. And eventually, a couple of abortion doctors sued over a law that limited what kind of abortions they could do. It specifically said you couldn’t do a DNC, which people may be familiar with, which is commonly done in the second trimester. And you actually defended the state in this case. So you were advocating for, you know, more abortion restrictions?

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Speaker 2: Well, I wasn’t advocating for more restrictions necessarily. The question was whether the state constitution recognized the right to an abortion, and that question had never been decided by the Kansas Supreme Court. So they deliberately forced a decision on the state constitution by not raising any federal claims.

Mary Harris: And the Supreme Court decided that the state constitution guarantees essentially a right to abortion. It’s basically the opposite of a trigger law. It says like, if Roe is overturned in this state, abortion is protected.

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Speaker 2: Well, it’s actually effective immediately, because what it does is it gave a higher level of protection to anyone who wanted to invoke the state constitution. You didn’t have to wait for federal law to change. So the court said there is a right and unlike federal law, we’re going to protect it at a higher level.

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Mary Harris: My understanding is that it took the Supreme Court two years to decide, which is pretty rare.

Speaker 2: So it was argued in, I believe, March of 2017. And so I argue that then I was actually teaching constitutional law, a federal constitutional law, that the law school and it was a morning argument. So instead of class, I had my students watch the argument on Livestream.

Mary Harris: What did they think your argument?

Speaker 2: Some students said, Well, I know I never want to be an appellate lawyer. That looks too difficult. One student said she sent me a picture of his dog on the couch who fell asleep. The dog didn’t find it very interesting.

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Mary Harris: Can I can I ask you a personal question? Because I know that you characterize yourself as pro-choice, but you were arguing for the government here. Was that weird for you.

Speaker 2: As a lawyer? You do what you do and you have to make some calls sometimes about what you’re willing to argue that one, you know, in hindsight, maybe I wouldn’t have argued it. On the other hand, it was a fascinating argument to figure out if if Kansas recognize such a right, where the heck it would come from. But I did argue it, and I’m still comfortable with having argued it because I knew and I thought and never expected that Roe in case it would be overruled. I thought that baseline was always going to be there. I never really expected what happened this year.

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Speaker 2: And I you know, I do have five daughters. I don’t. I don’t like the idea of these states banning and going crazy with some of these laws, trying to make it a crime. If you help someone travel to obtain an abortion or you know, I’m part of a big law firm and there are law firms and other employers who are going to pay for employees to go obtain abortions. And Texas and others are threatening to make that a crime. I mean, they’ll have a real fight on their hands if they do that and try to enforce it. But to me, that’s all this craziness.

Mary Harris: This constitutional amendment that’s being voted on this week. It strikes at the heart of this Kansas Supreme Court decision. It basically, if you read it, it says the Constitution doesn’t get to decide. The legislature does. I mean, there’s so many confusing things here. Like, I think even the fact that if I’m a voter, a no vote means I’m supporting abortion rights like that is confusing to me. They’re just a bunch of ways that I think it’s confusing. Is that on purpose? Is that just the way it worked out?

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Speaker 2: No, it’s deliberate. You know, starting with the title values in both. It’s not about valuing them both, you know, because most of these regulations, a lot of them have nothing to do with the health of the woman. They are really about trying to make it more costly and more difficult for providers and therefore limiting access. Trying to put them out of business. So view them both. No, it’s this is about trying to limit abortions. And I think that’s deliberate. It’s also deliberate. They chose to put it on a primary election ballot.

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Mary Harris: Yeah. Typically, I don’t think of big elections being in August.

Speaker 2: No. And the reason for that is because they they know the general trend is there are very few contested, rarely contested statewide primaries for Democratic positions, but there are often contested primaries for Republican positions.

Mary Harris: So you guarantee a lot of Republican turnout and independents or Democrats just may not show up.

Speaker 2: Exactly. So the timing is no accident either. It’s very deliberate.

Mary Harris: Who decided on that? The legislature.

Speaker 2: Oh, yes. Oh, yes. And the Republicans control the legislature. So they have the Republican decided on the title. They decided on the wording. They decided on the timing of the vote.

Mary Harris: I write about something else, which is the fact that new voting laws make it a felony to knowingly impersonate an elections official, and that that’s actually had a chilling effect on voter registration drives and sort of get out the vote efforts in Kansas. And so there are sort of all of these things operating on different levels here.

Speaker 2: Right. Right. And there’s, I think, some other regulations that may even restrict, like, you know, ballot harvesting, like how many votes, like absentee ballots or whatever someone could go around and collect from elderly citizens, for example, and turn them in for them and those sorts of things. I mean, they’ve, they’ve been active in various ways trying to make it essentially more difficult for people to vote.

Mary Harris: I’m not conspiracy minded and I get the sense that you are not either. But these facts don’t make me think that the advocates for this constitutional amendment are playing things straight with the voters. Are they?

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Speaker 2: They aren’t. And, you know, things like the you know, every one of these glossy fliers on the vote. Yes. Makes a big point to stop taxpayer funding of abortions. And the fact of the matter is, they can’t stop the Medicaid ones, which are not very many. You know, those are driven by federal law. If you participate in the Medicaid program, you have to follow the federal requirements. And those are to save the life of the woman typically. And everything else that would be taxpayer funded is completely in the legislature’s control already.

Speaker 2: You know, there’s there’s no funding of elective abortions because the legislature would never do it and there’s nothing that would compel them to do it. So, you know, that’s just to me, that’s that argument is just a scare tactic, the complete red herring. It’s very misleading.

Speaker 2: So and the notion, you know, the other notion that there’s going to be some sort of they kind of make it sound like we’ll have reasonable debate over this. If we if we just knock out the court decision, then we can just have reasonable debate and come up with regulations that make sense. I don’t believe it for one second. I think that first week of the legislative session bans will be proposed. That’s what will happen.

Mary Harris: When we come back. What could this vote in Kansas mean for the broader battle over abortion rights in the U.S.?

Mary Harris: There was some audio that came out of a Republican state senator basically saying the quiet part out loud, saying, you know, if this amendment passes, the goal is to have the legislature say life begins at conception. We’ll be able to make some laws from.

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Speaker 2: Early retirement.

Speaker 4: With legal part of a glider starting at conception. Yeah.

Mary Harris: You know, it was it was shocking to me to hear a recording of someone saying that, although I guess it shouldn’t be, because that’s kind of what’s been said the whole time.

Speaker 2: Oh, I think that’s that’s very much there. And I think there’s actually a statute on the criminal side that we’re probably going to have to contend with if this passes that says essentially life does begin at conception so that for murder purposes. You know, that could be a human. Although the statute currently has a provision in it that I think accepts abortions because it recognizes their legal.

Mary Harris: Would it hold a woman or a physician responsible? Both.

Speaker 2: Well, I think potentially, you know, depending on how the statutes worded, and I don’t remember the exact nature of the exception. But if you make abortions legal and they go back in and they amend that statute, then potentially. Yes.

Mary Harris: To both.

Speaker 2: Yes. And certainly the provider, but potentially the woman as well.

Mary Harris: A lot of people are looking at this vote this week and. Saying that it could say something bigger about the United States and sort of where Americans are when it comes to abortion. Do you feel like that or do you feel like it really says more about Kansas? Like how? How will you see this result? Whatever it is?

Speaker 2: Yeah, it may. You know, I mean, polls keep showing that, you know, a majority of Americans do not really want abortion to be completely banned. And this notion that Dobbs says that we need to send this back to the states so that people can resolve it may be really a unrealistic idea because the what I call the pro-life forces, they’re not interested in any sort of compromise and they’re just going to keep pushing and demanding, you know, something more extreme. And so I think for Kansas at least, it will be very interesting to see the what I think of as our history of moderate populism shows up in this election and defeats this amendment.

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Mary Harris: Are you nervous?

Speaker 2: Oh, yes, absolutely. I have no confidence that it will be defeated if it if it is defeated. I also have no confidence that this will be the last effort to overturn the case, because I don’t think there’s anything that would prevent the legislature putting another amendment on the ballot and trying again.

Mary Harris: So you’re not going to like crack open champagne if this goes down in flames?

Speaker 2: I might, you know, because it’ll be a relief and it’ll take a while before perhaps they do it again. But I don’t think there’s anything that really legally would preclude them from trying. Or do.

Mary Harris: You? You’re kind of a mystery to me because you’re a Republican. You clerked for Clarence Thomas. Trump appointed you to be the state attorney. And I know that people have diverse viewpoints. I know that people are complicated, but it feels like expressing the opinions you’re expressing right now. They’re very out of line with your fellow Republicans in this moment.

Speaker 2: Well, I guess I’d say I’ve never been is the conservative. A lot of people are saying I am based on some of the people I’ve worked for. I also have worked for two Democratic attorney generals in Kansas. You know, I’ve been non-partisan in the sense I liked working for Kansans. And part of my motivation for being U.S. attorney actually under President Trump was there were choices that could have been bad for Kansas, and I did not want to see that happen.

Mary Harris: You’ve mentioned your five daughters when you talked to them about this moment. I just wonder what their conversations like. You sound like you have a little regret about some of the work you’ve done. Knowing what you know now.

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Speaker 2: Yeah. Although I think they are, you know, they’re very proud of what I’m doing now. And I will say. You know, I did make a choice several years ago when I was still working for the attorney general’s office on the same sex marriage issues came up, and I told the attorney general I would not defend. The Kansas Constitutional Amendment declared marriage is only between a man and a woman because one of my daughters is a lesbian. And I said, that’s just too close to home. I can’t do that. And I said, I’ll resign if you want me to in a my my evolution, if it’s even that is been taking place over time. If the Republicans in the painting race so it. I’m working for the just causes.

Mary Harris: Stephen McAllister I’m really grateful for your time. Thanks for coming on the show.

Speaker 2: Yeah, pleasure.

Mary Harris: Stephen McAllister is a former U.S. attorney. He’s currently a law professor at the University of Kansas. And that’s our show. What next is produced by Alena Schwartz, Carmel Delshad, Madeline Ducharme and Mary Wilson. We’re getting a ton of support right now from Jared Downing and Anna Rubanova. We are led by Alicia montgomery and Joanne Levine. And I’m Mary Harris. Go talk me down on Twitter. I’m at Mary’s desk. All right. I’ll be back here tomorrow.