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Issues & Implications
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The first major post-Roe referendum will be on Tuesday in Kansas


Alena Ozerova | Shutterstock

John Burger - published on 07/29/22

The Value Them Both amendment would change the state's constitution to clarify that it does not guarantee a right to abortion.

On Tuesday, August 2, Kansans will be able to vote on a referendum about whether to add an amendment to the state’s constitution. The Value Them Both amendment would clarify that the constitution does not guarantee a right to abortion or government funding of it, as well as giving the Kansas Legislature the right to regulate abortion. 

Chuck Weber, the executive director of the Kansas Catholic Conference, said that in a post-Roe v. Wadelandscape, the vote could be a bellwether for what happens in other states. He spoke with Aleteia about what the Value Them Both amendment would do. 

What is this amendment all about?

Value Them Both is a state constitutional amendment that reverses a Kansas State Supreme Court ruling [Hodes & Nauser v. Derek Schmidt] that was issued in 2019 that at that time declared abortion to be a “fundamental right” in the Kansas constitution. Value Them Both is actually an abortion-neutral amendment that says abortion is not a fundamental right, and it returns to the people of Kansas through their duly-elected legislators the ability to create public policy about abortion.

When did this effort to amend the constitution get started – before or after the Supreme Court’s Dobbs v. Jackson decision?

It was long before Dobbs. The Hodes ruling came down on April 26, 2019, and immediately, we started making plans to address this pretty extreme ruling by our Kansas Supreme Court. So it predated Dobbs by at least a couple of years.

Where did the initiative come from?

We had sort of a three-legged stool, if you will. There were hundreds, thousands of people involved, but the three main groups were the Kansas Catholic Conference; Kansans for Life, which is the long-time pro-life advocacy group in Kansas, and then we have an evangelical partner called Kansas Family Voice. The three of us have been working as a leadership team on this, but there’ve been many other subgroups. 

Why is it important to the Kansas Catholic Conference?

If we do not pass the Value Them Both amendment, abortion in Kansas will be virtually unlimited and unregulated. I can’t say that strongly enough. We will be like China or Vietnam or North Korea in terms of our abortion policy. The original case was a law that banned live dismemberment abortion, also known as dilation and evacuation – that’s the medical term. Our legislature, back in 2015, said this is such an egregious, outrageous practice going on in Kansas that we need to ban it. 

So they passed a law that did ban live dismemberment abortions, and immediately the New York-based Center for Reproductive Health filed a lawsuit. The court not only said the ban is unconstitutional but every other pro-life law in Kansas that touches on abortion is “presumed unconstituional.” There are 20-plus pro-life laws – things like parental notification for teenagers who want an abortion; informed consent for women about to get an abortion, or bans on taxpayer-funded abortions – those are all laws that are now, according to the law, presumed unconstitutional. It’s an old joke that says in order to sue someone all you need is $50 and a lawyer, but once these laws are challenged, they’re going to fall. There’s a legal term called strict scrutiny. It’s a very high bar. And legal analysts across the board say we will not be able to jump that hurdle of strict scrutiny. That means that all these laws in Kansas are almost certainly going to fall. And they’ve already started: we have the live dismemberment abortion ban, and we also have a basic clinic licensure and cleanliness sanitation regulation. Those two laws are just the first two to fall, and the rest are going to fall like dominoes if we don’t pass the Value Them Both amendment. The district courts that get these cases, they’ll have no choice but to overturn them because the State Supreme Court has declared that they’re presumed unconstitutional and abortion to be a fundamental right in Kansas now. 

What is likely to happen in the legislature if the amendment passes? 

We’d like to see the ban on live dismemberment abortion and the basic clinic licensing and sanitation law get reinstated, so we’ll have to pass them again. Beyond that, I think the focus of the Kansas Catholic Conference and the Catholic bishops of Kansas is “How can we help women who are in unplanned pregnancies?” We know that government can’t do everything, but that government can do some things, so one of the things that we’re going to be focusing on is “How can we bolster our pregnancy maintenance initiatives in Kansas?” It’s a pretty small program in Kansas, where we have grants for various clinics and pregnancy resource centers, where they are given money to help them help women maintain their pregnancies through all nine months and after birth. 

There’s lots of conjecture about what’s going to happen, but really, no one really knows. The past is probably the best precursor to the future, and it would likely be reasonable regulations like bans on taxpayer-funded abortion or requirements that both parents should know about and give consent to their underage daughter, or informed consent laws, where mothers who are going to have an abortion are given a set of metrics, like “Your baby is at this point gestation, and here are the complications that could arise from an abortion,” and that sort of thing. 

Beyond that it’s anyone’s guess. It depends on who the governor is and if we have a legislature that’s going to be reelected this fall. So it’s really hard to say.

What’s the legal limit on abortion right now in Kansas?

The legal definition of abortion is that up to 22 weeks it’s legal. But under the Hodes ruling, these laws are all presumed unconstitutional so we really don’t know if things like parental consent are being followed in Kansas. If I’m an abortion clinic and I know that that law is presumed unconstitutional and a girl shows up at my doorstep, why wouldn’t I give her an abortion without her parents’ knowlege? Because even though the law’s on the books, we don’t know. It’s presumed unconstitutional and they sort of have the backing of the State Supreme Court to go ahead with that, because we know that that law really is like a sandcastle on the beach: as soon as that tide comes in it’s going to wash it away. There are 20-plus laws, but they’re all presumed unconstitutional. We know from the Kansas Department of Health and Environment that there are nine live dismemberment abortions happening right now every week. 

Are there bills in the works to restrict abortion earlier than 22 weeks, such as a heartbeat bill?

There have been various bills proposed in the legislature, and none of them has gotten any traction. There was a total ban that was introduced last session, and not one other legislator got behind it; it was [from] sort of a rogue legislator, and it was, frankly, an outrageous bill. 

In theory, a lot of things could happen. But unless we pass Value Them Both, there will be no other restrictions possible. 

How is it looking for Tuesday’s vote?

I think there’s been one poll published that had us ahead by 4 points, but all the polling I’ve seen, it’s just too close to call. Our focus is just to get out the vote. The abortion industry has poured millions and millions of dollars into this thing. Our analysis is that more than 70% of the money on the abortion industry side has come from out of state. This is very disconcerting to us. Ninety-nine percent of the money on our side has come from in-state. The predatory abortion industry is trying to buy this election right now. They just came in yesterday with an $800,000 TV ad buy and just swamped the airwaves in Kansas. They’re tyring to confuse and divide pro-life people, and in some instances they’re having some success. So the bottom line is it’s too close to call.  

What kind of support does it have from politicians and others? 

In terms of legislators, we needed supermajorities in the Senate and the House just to get this on the ballot. You have to have identical language passed by both the Senate and the House to just get it on the ballot. That happened a year and a half ago. I think we have good support there. 

Of course the Kansas Catholic Bishops are totally on board. But there are dissident groups. The Methodist Church is fairly strong in Kansas, and a group of 30 Methodist pastors came out a week and a half ago saying they supported a No vote. I think the Evil One sees an opening here for division. The Evil One loves division. You’ve got a lot of division regarding this in the religious community. It’s sad.

The Catholic Church specifically has been attacked. The Kansas City Star did a full-page spread three weeks ago basically attacking the Catholic Church. They ran an op-ed piece by a rabbi which, frankly, was beyond the pale. I thought it was an anti-Catholic, bigoted piece of opinion. Archbishop [Joseph] Naumann [of Kansas City] pushed back on that with an op-ed piece.

So it’s a real battle. Not only is it a temporal, worldly battle right now, but in a very real way it’s a spiritual battle. 

Has the Dobbs ruling given this more “ummph”?

We knew that way back when the U.S. Supreme Court was going to hear the Dobbs case that it was a possibility that Roe v. Wade could be overturned, and that no matter what they ruled, we know that we’d be first in line after that ruling. So I think we were as surprised as anyone that Roe v. Wade was completely overturned. But yes, it amped up the anger level and bitterness from the abortion industry and its supporters, but it’s also amped up the enthusiasm of people who are pro-life. We believe that in Kansas we’re going to be writing the first chapter of American history in the post-Roe era. The way Kansas decides on this is going to be a bellwether for what happens in other states. 

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