Important takeaways from Kansas’ vote for a constitutional right to abortion

Kansans recently voted overwhelmingly to retain their state constitution’s protection of a right to abortion — a victory for women’s health and equality in the state. The landslide vote took place despite confusing ballot wording, intentionally misleading messaging from abortion opponents and the state’s deep crimson politics. This was the first vote taken on abortion rights since the U.S. Supreme Court overturned Roe v. Wade in June, and the extent of the victory — an 18 percent spread — surprised abortion opponents and supporters alike. Most observers had projected a close race. 

But Kansas’ vote does not mean that the right to abortion is best left to the ballot — a driving justification offered by the U.S. Supreme Court’s radical right majority and an argument that some have suggested this vote validates. Specifically, in the recent Dobbs decision, the majority wrote that “the authority to regulate abortion must be returned to the people and their elected representatives.” In his concurrence, Justice Brett Kavanaugh agreed that “the Court’s decision properly leaves the question of abortion for the people and their elected representatives in the democratic process.” Ironically, Kansas’ vote not only protected abortion rights in the state — it also amounted to a democratic rejection of the position that abortion should be left to politics. 

That Kansans unambiguously rejected the ballot initiative that would have changed the text of their state constitution to permit the outlawing of abortion is a victory to celebrate with a variety of important takeaways. (The right to abortion was recognized by the state’s Supreme Court as being enshrined in the state’s constitution in 2019.)

First and foremost: celebrators of women’s equality needn’t totally despair; voters in red states appear to hold different positions on abortion than the majority of their stridently anti-abortion elected officials. In real terms, people will continue to be able to access legal abortion care in the state of Kansas. 

Additionally, the vote is an important statement on the place of politics in reproductive care. When Kansans voted on whether the right should be taken out of the state’s constitutional ambit — what Dobbs did to the federal constitution — an overwhelming majority, 59 percent, rejected the idea that their state legislature should decide the fate of abortion in the state. The ultimate outcome of Kansas’ election is that abortion remains a constitutional right in the state, and not a political football — as it should be.

Abortion is too fundamental, too personal, too essential to individual liberty to be left to the whims of the public’s or politicians’ discretion. As the Dobbs dissent warned, the right to abortion is “part of the same constitutional fabric” as the rights to same-sex marriage, same-sex intimacy, and contraception — rights that similarly should not be left to facile political discretion. 

This is what the people of Kansas voted in favor of: not only abortion rights, but also constitutional protection of the right to personal autonomy, which the Kansas Supreme Court reasoned “allows a woman to make her own decisions regarding her body, health, family formation, and family life — decisions that can include whether to continue a pregnancy.”

Including Kansas, 10 states have recognized the right to abortion under their own state constitutions. This is immensely important in our new post-Roe reality. Although the Supreme Court has issued its decision reversing a half-century of precedent that recognized that right, in time, the court should again acknowledge that abortion is also embedded in the federal constitution and is a fundamental federal constitutional right.

Elyssa Spitzer is a senior policy analyst for the Women’s Initiative at the Center for American Progress.