Kansas Votes on Abortion Rights

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Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone. Today's a big day in the post-Roe vs. Wade world. The state of Kansas, as you may have heard, is holding a referendum on whether to remove abortion rights from protection by the state constitution. In a minute, I'll read the actual wording of the proposal on the ballot and we'll talk to Shefali Luthra, who covers healthcare for the news organization, The 19th. This vote today is seen as a test case because it's the first time voters will have a direct say in abortion rights politics since the Supreme Court undid the national right in June.

Also, it's happening in a conservative state. Basic abortion rights are popular nationally. If a vote to allow restrictions fails in Kansas, it might be a warning to lawmakers in many states not to go too far in criminalizing women's choices even though the Supreme Court says they can. This is also a test of the precise wording that abortion rights opponents are using in Kansas. It's a dense and confusing and frankly, with twisting clauses a ballot question, each clause carefully drawn for political appeal. They're calling their campaign "Value Them Both", meaning women in fetuses or what they call women and children. That's how the ballot measures language begins.

Here it is for Kansans to vote yes or no on, "Because Kansans value both women and children, the constitution of the State of Kansas does not require government funding of abortion and does not create or secure a right to abortion. To the extent permitted by the constitution of the United States, the people through their elected state representatives and state senators may pass laws regarding abortion, including, but not limited to laws that account for circumstances of pregnancy resulting from rape or incest, or circumstances of necessity to save the life of the mother." Then there's a box where you can check yes and a box where you can check no.

With me now, Shefali Luthra, who covers the intersection of gender and health for the nonprofit news organization, The 19th. The name refers to the 19th Amendment to the US Constitution, which gave women the right to vote. Shefali Luthra joined The 19th from Kaiser Health News where she had been a healthcare reporter before. Shefali, thanks for coming on today. Welcome back to WNYC.

Shefali Luthra: Thank you so much for having me.

Brian Lehrer: Can we start by taking a close read of that language together to unpack what they're really asking and how it's politically targeted? That very first clause, which is also the name of the proposed amendment, it says, "Because Kansans value both women and children." How do you hear the meaning and the politics of that wording?

Shefali Luthra: This is a line that Republicans who oppose abortion rights have been trying to walk arguably since the '90s. They've been really trying to frame this as a policy choice that is about respecting the health of pregnant people. We have seen that language in restrictions that were used to limit abortion clinics, the onerous requirements that clinics are required to follow to stay open. These were passed ostensibly to promote the health of pregnant people seeking abortions.

What we know is there isn't usually much evidence and this is a way to try and make the politics of it more appealing given that we know that abortion restrictions, as you mentioned, are broadly not incredibly popular and especially not in the post-Roe world. Even in Kansas, a fairly conservative state by a lot of measures, abortion rights it's pretty acclimated of a 50-50 split in terms of whether voters believe that access should be banned or should be maintained. This is an attempt to-- Oh, sorry, go ahead.

Brian Lehrer: No, I was just going to say we'll get more into the particular Kansas politics of that, as we go, but let's keep parsing the wording of the actual amendment, continuing through the proposal. "Because Kansans value both women and children, the Constitution of the State of Kansas does not require government funding of abortion." It goes first right to what might be a very popular limit, even if most people are for basic abortion rights and that is not to use their tax dollars to pay for poor women's abortions. Do you happen to know if there is government funding of abortion in Kansas now?

Shefali Luthra: There is not. Federal dollars do not go to fund abortion. That is a product of the Hyde Amendment. In Kansas, specifically, the Medicaid program and most insurance programs also do not cover abortion. People who are getting pregnancies terminated are paying for it largely out of pocket.

Brian Lehrer: That would just reaffirm the status quo. It's political that they go first-- We'll continue down the list of other things in the amendment, that they go first to banning government funding.

Shefali Luthra: Absolutely.

Brian Lehrer: It goes on. "Because Kansans value both women and children, the Constitution of the State of Kansas does not require government funding of abortion and does not create or secure a right to abortion." Now, here's where it gets really confusing, seeming to play on people's desire to let the government regulate and bring up possible exceptions, but not offering those exceptions.

It says next clause, "To the extent permitted by the Constitution of the United States, the people through their elected state representatives and state senators may pass laws regarding abortion, including, but not limited to laws that account for circumstances of pregnancy resulting from rape or incest, or circumstances necessary to save the life of the mother." Shefali, that could look to the casual voter who hasn't paid much attention to the details in the news, hasn't parsed it like we're parsing it, that it's promising at least those exceptions to a ban, while what it's really saying is that even rape, incest, and the life of the mother would no longer be protected by the state constitution and would be subject to the politics of the legislature. Am I reading that right?

Shefali Luthra: I believe you are. I think this is a really telling inclusion because what it does is it focuses on these exceptions that basically everyone supports the right to an abortion if you have been raped or if the pregnancy is a product of incest, if there are life-threatening concerns, but it doesn't say the quiet part out loud, which is these exceptions are only salient if there is an abortion ban on the table.

What we know practically is that if this amendment passes and the right to an abortion is not secure, there are law lawmakers in Kansas who are ready to introduce a law that would ban abortion in the vast majority of cases.

Brian Lehrer: They could have said, "Just these things will remain in the state constitution, rape, incest, and life of the mother pregnancies," but they didn't say that. They explicitly put everything in play there, while suggesting that those exceptions could be carved out. Listeners, anyone out there listening in Kansas right now, call and help us report this story. How are you seeing this campaign play out in your state? 212-433-WNYC, 212-433-9692. Hello, Wichita. Hello, Topeka. Hello, Lawrence. Hello, Kansas City. Not the one on the Missouri side, the one in Kansas. You're invited to call in and anyone else in New York, New Jersey or Connecticut, or anywhere with ties to Kansas. Anyone, I should say, with ties to Kansas, you're invited too.

What do you want to say or ask about the vote today in Kansas to remove abortion rights from protection by the state constitution with Shefali Luthra, healthcare and gender reporter for the nonprofit news organization The 19th? 212-433-WNYC. Help us report this story if you have ties to Kansas or just ask a question, 212-433-9692, or tweet @BrianLehrer. Shefali, your article headline on today's vote says, "Kansas, a critical abortion access point will soon vote on whether to protect the procedure." You write that Kansas has emerged as a regional abortion sanctuary. What do you mean by regional abortion sanctuary?

Shefali Luthra: I think a really helpful way to think about this is to look at the US map. We have to Kansas to the south Oklahoma and we have Texas. We have to one side Missouri. We have a bunch of states to the north that are on the verge of implementing their own abortion bans or that have begun doing so already. What this means is that a lot of folks in some pretty substantial states where they have lost access to abortion are now looking at Kansas.

Already one in two abortions in Kansas were done on people from out of state. That was before Texas' six-week ban took effect, that was before Roe v Wade was overturned. Within the past almost a year now, we have seen this really substantial shift where Texans went to Oklahoma and they went to Kansas for abortions. Once Oklahoma implemented their own ban, we have seen Oklahomans and Texans coming to the state.

There's a clinic in Wichita that has told me they get close to 1,000 calls per day from folks just trying to get an abortion appointment. They don't have the bandwidth to accommodate all those people. They told me that if they booked every patient who called asking for care, they would probably be booked out through the year, maybe longer. It's, I think, impossible to overstate just how important Kansas is right now, in terms of a close enough place that people can go to where abortion is readily available compared to where they live.

Brian Lehrer: What's the next closest state for people who are now traveling to Kansas to get abortions if this amendment passes, and then abortion gets banned in the state?

Shefali Luthra: Again, it depends on where you live. If you're in Texas, you'll probably be looking at New Mexico and Colorado where there are clinics that exist, and they are reporting three to four-week wait times for appointments, insufficient staff, et cetera. Maybe you're looking at Illinois, which again, if you're coming from Texas or Louisiana, oh boy, that's really far. Largely it's those ones.

Maybe you can try and get out to Florida, which allows abortions up to 15 weeks, but this is a really long journey. What we know about these journeys is that they are expensive, it takes time to raise the money, it takes time to travel, it takes time for an appointment. When all those things coalesce, it puts folks later and later in pregnancy, then that 15-week ban might be too much. Realistically, then what we are looking at is, right now, maybe North Carolina, definitely Illinois, Colorado, New Mexico, all places where clinics say that they are strapped.

Brian Lehrer: You wrote an article on New Mexico specifically recently saying, "A slew of abortion clinics are opening there." What's happening in New Mexico? Is that a sign that the country is bifurcating into states that are restricting further and further and those that are expanding access further and further to welcome out-of-state travelers?

Shefali Luthra: That's exactly what's happening. I can think of at least three clinics that I've spoken to off the top of my head who say that they are planning to open clinics in New Mexico, in Albuquerque, or in Las Cruces, so folks can get largely from Texas to these places. Again, this is not easy, it takes time to build clinics, it takes time to hire people. What we know is that especially if you live in a more conservative town, providing abortions or working at a clinic can make you a target for harassment, it can make you vulnerable to threats of violence. We know that abortion providers have been killed.

It's really not an easy ask, that just adds another layer of difficulty to what is an expensive endeavor, starting a whole new health facility in a new state. We have providers who are packing up their whole lives and moving to New Mexico or Illinois, for instance, to start these clinics. What we also know is that anti-abortion advocates are following them, setting up these crisis pregnancy centers that are given this veneer of medical legitimacy but often don't actually employ doctors and that exist to try and deter people from having abortions, which all of this goes to say that, "You're exactly right."

We are seeing this bifurcation of the states that are ramping up access and the states that are shutting down access. What we also know is that in the states where access is expanding, it's not clear if it will be enough to meet the dramatic need that they are about to encounter.

Brian Lehrer: Lisa in Queens. You're on WNYC with Shefali Luthra from the 19th. Hi, Lisa.

Lisa: Hi, thanks for taking my call. My main question is what is the Democratic Party or pro-choice activists in Kansas doing, in terms of educating the voters as to the ballot question? They found confusing, I'm sure some people might vote in a way that is against what they want. That's-- [crosstalk]

Brian Lehrer: Yes, great question. Shefali, tell us about the campaigns.

Shefali Luthra: It's tremendous. There are millions of dollars being fundraised and spent from both sides, really, but I've seen a ton of ads from the abortion rights side, trying to clarify what the amendment means. There's a big door-to-door presence, lots of canvassing, if you go to Kansas, you'll see the yard signs everywhere. The voting offices are quite full. It's clear that there is a very big mobilization and education effort happening. I think one thing that is really striking about how significant that outreach has been is the fact that this build seems really close. The best polling we have suggests, it's really neck and neck between the vote no and the vote yes.

As a reminder, vote no preserves abortion rights, vote yes eliminates them in the state. We didn't expect it to be this close, this is not supposed to be a great year for Democrats. It's a midterm with Joe Biden as the incumbent. It's also a primary where there is no competitive Democratic race happening in Kansas. The only competitive race is the Republican Attorney General candidate. All of this was set up with the expectation that we'd have pretty low turnout from voters who supported abortion rights, that doesn't seem to be the case now, which I think is in part attributable to the significant education being done.

Brian Lehrer: Can I go back to something you just said and put in bold for the listeners exactly what kind of a primary day today is other than for this ballot question? It wasn't put on the November election ballot. On this August primary ballot, where the only other major thing you report is a Republican primary for State Attorney General. There's no major Democratic primary in the state, as you just said. In other words, Republican turnout is guaranteed because they have a primary to vote in. Democrats don't, they won't be voting on other things. I can't believe that it's even legal for something of this magnitude, this abortion rights referendum to be on a ballot like this. Any evidence?

Shefali Luthra: The folks I've spoken to in Kansas are pretty frank about their understanding that this was placed in August entirely to try and skew the turnout in a way that was favorable. Initially, we thought there'd be a Republican primary for governor as well, it turns out that didn't happen because at this point, there really only is one candidate. That could have tipped the scales even further.

Brian Lehrer: You quote a Kansas political analyst who says, "Republicans in the state have a libertarian streak that might help defeat the amendment." Where would that libertarian streak fit in?

Shefali Luthra: I think that is probably the vote to be watching today. Some of the ads that I've seen, they're really interesting in the way they talk about where abortion rights fit in. It is exactly what this political scientist describes, which is creating a narrative of, "Leave my guns alone, leave my land alone, and leave my body alone." That's how he frames it. That is a message that we are seeing come from this organization, Kansans for Constitutional Freedom. They group abortion restrictions and vaccine mandates, which is not a political collection that many of us are used to thinking about, it's very clearly targeted at these largely western Kansas voters who might have gone for Donald Trump and probably did in the last election but could be reached this time around.

Brian Lehrer: Keep your government hands off my vaccine choices, keep your government hands off my guns, keep your government hands off my body. That's where it all ties together, right?

Shefali Luthra: That's the idea.

Brian Lehrer: 212-433-WNYC. Craig in Morganville, you're on WNYC. Hi, Craig.

Craig: How are you doing?

Brian Lehrer: What you got for us?

Craig: I think that with these states, with Kansas and everything, I think that once the women who leave to go to another state, I don't think they're going to be able to go back home. I think with these laws, it's going to put more action to the State Police than they've ever seen. These state differences, they're going to have people going across state lines and they're going to be prosecuting them for murder. I think eventually, which I hope this doesn't happen down the road, that the money that it's going to take to support all these women or people coming to other states, they're not going to be able to handle the expense.

I think state lines eventually, in the next 10 to 15 years are going to be redrawn. These states are not going to be able to handle the money or have the budget for it. I hope that doesn't happen, but this is going to be very bad if this keeps going. You're going to have people follow these people across state lines and arrest them for murder. They're not going to be able to go back home. I hope that doesn't happen. That's where I am and thank you for listening.

Brian Lehrer: Craig, thank you for that. That dystopian view is frankly part of it at least, is where some of the states like Texas want us to head. Where Texas law enforcement will follow women across state lines, will criminalize doctors who might practice in New York or Florida or wherever for performing abortions on women coming from out-of-state from Texas. All of that is in play, right Shefali?

Shefali Luthra: I think what this speaks to is the really dramatic legal uncertainty. Even right now, for instance, people who travel from say Texas to Colorado are really afraid that if they take a medication abortion, which is two pills, one taken right away, the other 24 hours at least later that if they take the second pill at home, they could be criminalized. We know that there's a long history of people being criminalized for self-managing their own pregnancies, for trying to induce an abortion on their own.

There is a real fear. I think one that's quite legitimate is that this could only grow and that statutes like murder statutes, et cetera, could be part of this. It seems that we are just in the really early stages of trying to figure out what this all looks like. What you're speaking to and what I think Craig was speaking to, which we can't say enough is that this is just a public health really crisis of proportions that we have not really experienced.

Brian Lehrer: Craig talks about state lines being redrawn. I don't know if that's going to happen, but you could see a scenario and this is really far down the road, but you could see a scenario where the so-called Red States and the so-called Blue States bifurcate in their values so much. Nothing bigger on that front than abortion rights right now that there might even be a secession down the line, maybe a mutual non-violent breakup or something like that.

That's how different the cultures of some of the states are becoming. We're going to take a break and continue with Shefali. We're going to play a clip of Justice Alito, who of course wrote the Dobbs decision, and talk about religion-based money going into the yes side of this Kansas Campaign. Stay with us.

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Brian Lehrer, on WNYC with Shefali Luthra from The 19th who covers healthcare for them, former Kaiser Health News reporter. Now she covers healthcare and gender for The 19th, which is a nonprofit news organization named for the 19th amendment, which gave women the right to vote. We're talking about the first of its kind in the nation since Roe v. Wade was overturned, a ballot referendum on the ballot in the State of Kansas today to remove abortion rights from protection by the State constitution.

Now Shefali, you report that the Archdiocese of Kansas has poured more than a million dollars or about a quarter of all the funding into the vote on the yes side of the race. To that point, I want to play a clip of Justice Samuel Alito, who of course wrote the Supreme Court decision overturning Roe. He was at a religious liberty conference in Rome and talks here ironically to my ear about protecting religious liberty in an increasingly secular world.

Justice Alito: Religious liberty is under attack in many places because it is dangerous to those who want to hold complete power. It also probably grows out of something dark and deep in the human DNA tendency to distrust and dislike people who are not like ourselves.

Brian Lehrer: Justice Alito there. Again, I know you're a healthcare reporter, Shefali, not a theologian, but wouldn't it be a theocracy and precisely not tolerant of people unlike oneself? A theocracy: a state in which conservative religionists have complete power over women's individual religious choices to impose an abortion ban? He seems to argue that allowing abortion bans increases religious liberty, which is astonishing to me. Do you know if people in Kansas are having the debate on that level?

Shefali Luthra: That's a good question. That isn't something that I've heard from folks in Kansas. I do think you're speaking to something that is striking about how the Supreme Court has looked at the question of religious liberty, which is something we have seen in the abortion ruling. Which is, it is one that equates religion with Christianity and authentic Catholicism, in particular.

We know that different faiths approach abortion differently. We know that in Judaism, for instance, the life of the pregnant person is considered more important and that often abortion is really important. That's actually been the basis of a new breed of legal challenges coming up. In Florida, I think is the main one where they are arguing that abortion bans are actually an infringement upon their religious liberty. I think that something that we should be keeping an eye on is a new interrogation of for whom this liberty exists and what does that mean for other people in practice.

Brian Lehrer: To the caller, Craig in New Jersey, before on how states are dividing up and saying state lines might even be redrawn and police from one state are going to follow women into other states. Listener tweets, "What we will soon see is stand your ground laws in the Blue States to protect women from Red State bounty hunters. If we are serious about protecting women, this must happen."

There's another scenario. Again, Shefali, recognizing that you're a healthcare reporter and not a political analyst, is there any reason you know of to think that libertarian streak, that you mentioned before that might save abortion rights in the Kansas State Constitution is the more prominent conservatism in a state like Kansas than states like Texas and Mississippi and Arkansas that have passed the most sweeping abortion bans?

Shefali Luthra: What we do know about Kansas' political history is that it has always been a bit different. They really pride themselves in Kansas on that libertarian Republicanism defining them and making them a different color of red than the other Republican-leaning states in the country. I do think if we look at the political history in the past few years of where the Kansas government has gone, it is not clear if even there that libertarian streak holds the same sway it did.

Some good evidence of that is that all of these "moderate Republicans" who were an important element of the State Legislature have lost their primaries and lost their seats. That was for at least a few of them that I've spoken to largely because of their votes on abortion policy, in particular. The end result is whether these more "libertarian ask Republicans" exist, or in Texas, it might be right the woman in Dallas who is a Republican but doesn't support parenthood is also a demographic that is real, whether they're ultimately represented in their law-making bodies. Increasingly it seems that just the really intense polarization on the state level means that is no longer the case.

Brian Lehrer: How do you see the implications for other states if the Kansas Amendment passes or fails? I could see where it would have huge implications for Conservativeish states like Kansas. Either way, certainly if it goes down and abortion rights remain protected by the State Constitution. That might chill some legislators in other states who fear for their elections from trying to go this restrictionist route.

On the other hand, it is such a unique election being otherwise just a Republican primary in a low turnout early August week. With this particular situation where abortion rights are not written into the constitution of the State, but they were interpreted to be there by the State Supreme Court and so it's removal. I don't know, there are particular things about Kansas, but maybe there are also universal implications for other states based on how this turns out today. What do you think?

Shefali Luthra: I think this is probably the first test and whatever happens will be really illuminating in large part because National Democrats are also really counting on abortion to change their portion in the midterms. They are hoping to win some senate races that were previously not thought of as very winnable because of abortion. We know that is what they're thinking about in Nevada and Wisconsin and New Hampshire.

Again, this is the first step and we know that there are more ballot initiatives in November. Kentucky and Montana have abortion-related initiatives on the ballot. California and Vermont do on the blue side. There may be a vote in Michigan. There is talk about one in Arizona. Basically, what this all means is, come election day in November, we will be able to collect a pretty robust body of evidence for just how much voters are reacting to this and whether the loss of abortion rights nationally is enough to really turn the tide in this country politically.

I think we'll have some evidence after today, but it will still be at least a half-open question.

Brian Lehrer: Which leads me to one other political question. It's kind of hypothetical and then we'll be out of time but you wrote that, "What they might pass in Kansas, if this amendment passes today and allows them to do it is not necessarily a total Texas-style ban but maybe something like a 12-week abortion limit if that's what the politics seems to allow." There have been several articles recently in different publications, wondering what would happen in ballot referenda if the wording was something like where the center of public opinion tends to be.

Maybe a right to an abortion in the first trimester or until viability like under Roe around 23 weeks or for rape or incest or the life of the mother cases but no other late-term abortions. Maybe advocates on either side would be unhappy with that kind of compromise, but do you see any campaigns to try to codify that kind of thing in ballot questions this November or in any other way, sort of Roe but nothing more than Roe?

Shefali Luthra: I think this is where it gets tricky because no one is talking at this point about protecting abortions up until 23 weeks and that's it. The closest, I think discussion to compromise that exists is what we saw in Florida where they put forth this 15-week ban on abortions. What I think that the lies is that 15 weeks is still far more restrictive than what previously existed. The people it affects are often far more vulnerable than the ones who are able to get abortions within the first trimester.

Second-trimester abortions are largely minors, people who are really low income and need more time to get the money together, maybe they had childcare problems and couldn't get to an appointment sooner, maybe they were cases of rape or incest and didn't know what to do, maybe didn't know they were pregnant or were trying to hide a pregnancy for as long as possible.

Largely what this I think points to is the fact that folks who are trying to thread this compromise are going to find that the political forces on both sides are just way too potent. There is really a lot of pressure to be in one camp or another. I could be proven wrong but I don't know how much longer this really tenuous pseudo center will hold.

Brian Lehrer: Shefali Luthra covers healthcare and gender for the nonprofit news organization, The 19th. Thank you so much.

Shefali Luthra: Thank you for having me.

 

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