It was a stunning political turn following a dramatic legal development in America: Less than six weeks after the U.S. Supreme Court revoked a 49-year national right to abortion—overturning 1972’s Roe v. Wade in Dobbs v. Jackson Women’s Health Organization—the conservative state of Kansas was the site of an overwhelming political victory for abortion rights. In an August 2 referendum, voters rejected a proposed amendment to the constitution of their state that would have ended the right to abortion there. The result was decisive—59 percent voting against the amendment and only 41 percent in favor, with 95 percent of the results reported. For an anti-abortion movement that worked to secure the overturning of Roe for half a century, Dobbs was its triumph; yet polls now show most Americans oppose the decision—and Democrats are eager to talk about new Republican restrictions on abortion as this fall’s U.S. midterm elections approach. How are the politics of this issue shifting?
Bill Scher is an American journalist and a contributor to The Washington Monthly. Scher says it’s too soon to gauge the full consequences of the Kansas referendum—or the broader effects on U.S. politics that Dobbs might be having—but he sees a clear potential for the abortion-rights movement to gain greater political advantage over the coming months, especially with so many Americans viewing new Republican restrictions on abortion as extreme. In fact, Scher thinks the United States could be entering a period when abortion becomes less of a polarizing issue in the U.S., consistent with most Americans’ belief that the procedure should remain legal within certain restrictions. In the immediate future, Scher says, Dobbs has set up a highly unusual dynamic for the midterms—with Republicans now out of power in Congress and the White House yet responsible for a massive disruption to politics and policy on an issue that will be weighing on voters’ minds.
Graham Vyse: What brought about this referendum in Kansas, in the first place?
Bill Scher: In 2015, Kansas’ Republican-controlled state legislature passed a law that would have banned so-called “dilation and evacuation” procedures used in late-term abortions. But Kansas’ Supreme Court struck down the law and interpreted the state constitution as protecting a basic right to abortion. Certainly, many abortion regulations remain on the books in Kansas—the procedure isn’t permitted after 22 weeks of pregnancy unless the life or health of the mother is threatened, there are parental-consent requirements for minors, and there’s no taxpayer funding for abortion at all—but, according to the Court, the law of the State of Kansas protected a basic right to end a pregnancy.
Republicans in Kansas weren't happy with that decision, so they decided last year to put a state constitutional amendment on the ballot—as a referendum—to supersede the state Supreme Court ruling and allow the legislature to ban abortion. They scheduled the referendum for this month; abortion-rights advocates believe Republicans thought the date would be advantageous, because it was the same day as the state’s primary elections—and primaries in Kansas don’t usually bring out many Democratic voters, since there aren’t often important, contested Democratic primaries there. The Republicans may also have believed that many younger Kansans and college students—who are likely to be left-leaning voters—would be away in the summertime. What Republicans obviously didn’t know last year was that the U.S. Supreme Court would have overturned Roe v. Wade, raising the stakes of the issue—especially for abortion-rights supporters.
This was the first real test of abortion politics after Roe’s overturn, and the two sides were well-matched and well-funded, yet the vote wasn’t close. In the end, with more than 921,000 votes cast in the referendum, 59 percent of voters supported the abortion-rights side while 41 percent chose the anti-abortion side. The abortion-rights voters included independents and Republicans; it was a unifying vote that transcended the polarization we often say is plaguing America. Keep in mind that Kansas isn’t a swing state. It’s not evenly divided between Democrats and Republicans. It has a Democratic governor, but it’s a Republican state that voted overwhelmingly for Donald Trump and sends Republican senators to Washington, D.C.
Vyse: How did the public debate over this referendum play out?
Scher: The public debate showed that the anti-abortion side was playing defense—and knew they were playing defense. They ran a less-than-forthright campaign, candidly. They didn’t say, Pass this so we can get rid of abortion. They presented their case as though they were simply pushing to keep regulations on abortion that everyone agreed on.
Meanwhile, the abortion-rights side waged a fierce campaign. As I’ve written at The Washington Monthly, they framed the proposed amendment as a government mandate. They struck a lot of libertarian themes.
This was the first real test of abortion politics after Roe’s overturn, and the two sides were well-matched and well-funded, yet the vote wasn’t close.
They had a lot of male narrators and male on-camera speakers in their ads, including a doctor who said the amendment would violate his oath to do no harm. They had a male pastor arguing it would harm religious freedom. Then they had a woman saying she had a husband and three-year-old son who needed her, and an abortion had been necessary to save her life. They had a Catholic grandmother who expressed discomfort about abortion—and said she hadn’t talked much about the issue when she was growing up—yet believed her granddaughter should be able to make her own decisions. Other advertising stressed the abortion regulations that were already on the books—the fact that abortion is already highly regulated in Kansas. They emphasized that the amendment could lead to a total ban on abortion with no exceptions for rape and incest. The ads clearly resonated with swing voters—center-right Kansans who don’t love abortion and may not connect with the way progressives talk about the issue.
Nationally, there’s been some debate among Democrats and progressives about how to talk about abortion: Do we say the word “abortion”? Do we say “decision” instead of “choice”? Do we not say “safe, legal, and rare” anymore? The winning Kansas campaign wasn’t consumed by any of that. They had some ads that said “decision” and some that said “choice” and some that didn’t say either. Sometimes they said “abortion” and sometimes they didn’t. They weren’t trying to pacify different Democratic Party factions organized in Washington, D.C.; they were focused on what would resonate with middle-of-the-road Kansas voters. Incidentally, the campaign was devised by a consulting firm in D.C., but they made smart choices.
Vyse: What does this vote in Kansas tell you about how the politics of abortion might be shifting nationally?
Scher: The Kansas vote shows the potential for Democrats to create at least some degree of political realignment on the issue of abortion. Republicans are now like the dog that caught the car: Donald Trump ran for president in 2016 on stacking the Supreme Court with anti-abortion justices, and he followed through on that after he won. He wasn’t rewarded electorally, given that he lost in 2020, but he followed through—and the Trump-shaped Court moved as fast as it possibly could to fulfill his promise to overturn Roe v. Wade.
I think Republicans drew the wrong conclusions from what’s been happing in Texas, which has a near-total abortion ban on the books. There weren’t many lawsuits to enforce the ban, and people didn’t seem to be pouring into the streets, and the clinics just kind of shut down meekly. What got lost in all of that was that number of people in Texas having abortions didn’t decline much. People were getting abortions with abortion pills, which were being mailed illegally, or by going to other states. Now you have more states pushing abortion bans and more open talk about banning people from traveling across state lines to get abortions. So the politics are getting complex.
They weren’t trying to pacify different Democratic Party factions organized in Washington, D.C.; they were focused on what would resonate with middle-of-the-road Kansas voters.
Vyse: How do you see U.S. public opinion shifting on the issue?
Scher: Well, Americans are generally in favor of abortion rights but comfortable with some degree of restriction on the procedure, especially late in pregnancies. What we’ve seen in the past six weeks is that Americans’ tendency to dislike extreme bans on abortion seems to be holding and becoming more important to them.
Vyse: How are Republican and Democratic politicians changing their approaches to abortion politics in light of Dobbs and this Kansas result?
Scher: It’s a little early to know the effect of the Kansas result, but it’s clearly more advantageous for Democrats to talk about abortion than it is for them to talk about inflation. I expect they’ll try to elevate the abortion issue as much as possible, though elections for Congress and governor are typically about a lot of different issues. I’ll be watching the elections for attorney general, which tend to have a lower profile. You’ll see Republican candidates who want to prosecute abortion providers aggressively. Democratic candidates will say they don’t want to prosecute them. Florida’s Governor Ron DeSantis fired an elected state attorney—what you’d call a “district attorney” in most places—because the attorney said he wouldn’t prosecute abortion providers.
Vyse: There was obviously a lot of anxiety among abortion-rights supporters about Roe being overturned—and many of their fears are now coming to pass, with “trigger laws” banning or restricting abortion procedures starting to take effect. Some Republicans are pushing for further restrictions. At the same time, we’re beginning to see pushback, as in Kansas. How does the reality of this post-Roe era compare to what abortion-rights supporters feared it would be like?
Scher: Well, the basic fear was that many Americans would lose their rights, that the trajectory of their lives would be altered unfavorably, and that the United States would be a nation divided, where people have rights in some states and not in others—akin to the days of the Missouri Compromise and the Fugitive Slave Act. Will some Americans not go to certain colleges or not take certain jobs because of this new environment? One possible source of optimism, for abortion-rights supporters, is the abortion pill, since anti-abortion forces haven’t figured out how to stop people from mailing or receiving such a pill. It’s not a perfect solution for abortion-rights supporters—there can be medical complications with the pills—but it can mitigate some of the harm, as abortion-rights supporters see it.
Kansas shows that a whole lot of states in the U.S. might not want to give up abortion rights. Not every state has the opportunity for a referendum—in fact, most states in the Deep South don’t—but most of the Western and Midwestern states do. In past decades, we’ve seen the anti-abortion side lose referendums in South Dakota and Mississippi. So this might ultimately be a depolarizing moment when Americans rediscover a unifying consensus that transcends other divisions they have.
This might ultimately be a depolarizing moment when Americans rediscover a unifying consensus that transcends other divisions they have.
Vyse: Some have argued that Roe actually contributed to a toxic, polarized politics and intensified culture war in the U.S. by taking abortion out of the realm of democratic contestation. What do you think of that idea?
Scher: I don’t think that Roe was a horrible, polarizing ruling, myself, though I’ve certainly encountered that argument from anti-abortion conservatives. Roe allowed everyone to make their own choice about abortion, which, in my view, is the least polarizing way to handle such a complex issue. If you let states decide, as they can now, it means they can take people’s rights away. To me, that’s a more polarizing arrangement than simply letting Americans go about their business. The liberal argument has always been that rights shouldn’t be decided by referendum—that gay marriage shouldn’t be left up to voters and state governments, for instance. Liberals want a constitutional jurisprudence in which basic rights can’t be taken away by majority opinion.
At the same time, there’s always going to be a faction of people in America who strenuously oppose abortion, regardless of what the Supreme Court says—and we shouldn’t expect them ever to give up. They’re going to continue to push these political debates. We’re having intense arguments on the issue right now, across the United States, and there are plenty of those whose lives are being affected in the process. I’m not sanguine about the current state of affairs, but life is complicated and good things can happen alongside bad things. We can rediscover what unites us in hard times, and Kansas provides hope that we might.
Vyse: If this ends up being a depolarizing moment for abortion politics, as you suggest it might be, what effects can you see that having on American democracy more broadly?
Scher: Consider this: If the latest polls are correct, Democrats are going to gain seats in the U.S. Senate this year. It’s possible that Republicans are going to pay for nominating an entire slate of extremist candidates in swing states. That would be a warning sign, suggesting that it’s possible for them to take things too far.
There’s also an unusual dynamic leading up to the U.S. midterm elections this year: Usually, the president’s party does badly because they’ve won an election two years earlier; they haven't met high expectations for the party because life is imperfect; the party’s tenuous political coalition is weakened; and the opposition party can focus on opposing it. This year, the opposition—the Republican Party—has acted through the Supreme Court, whose conservative majority they constructed not too long ago. That action is now having very concrete effects. It's creating a very unusual midterm-election dynamic that makes it harder for Republicans simply to talk about what Democrats are doing.