When the Supreme Court overruled Roe v. Wade and erased a right to choose abortion, Justice Samuel Alito declared the conservative super-majority’s decision a victory for democracy. “The authority to regulate abortion,” the court wrote, “must be returned to the people and their elected representatives.” On Tuesday, when the people had their first chance to weigh in on the matter, the results were stunning: In Kansas, a deeply conservative state, voters overwhelmingly rejected an amendment that would have eliminated the state’s constitutional right to abortion and would have allowed the Republican Legislature to ban abortion.
The vote was even more remarkable because of the way that Republicans stacked the deck in their favor: scheduling the vote during a primary, when turnout is usually low among Democrats and independents, writing the amendment in a way that confused the issues at hand, and insisting (implausibly) that a yes on the amendment would lead only to modest regulations, not an outright ban. With everything seemingly in its favor, the antiabortion movement lost badly.
That seems to send the antiabortion movement an ominous message — and it raises the chances that such groups will press harder on courts rather than voters to add new restrictions on abortion.
Antiabortion leaders have ambitious plans, especially in conservative states. Sure, there are still antiabortion incrementalists, who have called for prudence and feared a backlash from voters, but they are today seen as an out-of-touch, overcautious old guard by many in the antiabortion movement. Organizations like Students for Life, which opposes exceptions for rape and incest and the life of the mother, often have more influence in state legislatures and in Congress. So do smaller groups and local organizations, which are calling for no-exception abortion bans, limits on interstate travel, and broad definitions of accomplice liability that could affect everyone from family members to CEOs who reimburse their employees for the costs of travel for abortion. Republican lawmakers seem increasingly willing to cooperate with these demands, competing to head off potential primary challengers, appear the most opposed to abortion, and win over antiabortion donors.
The Kansas vote may throw a wrench in these plans. Polling data suggest that in all but 16 states, a majority of voters think abortion should be mostly legal. And in eight of those 16, the state is divided roughly in half. Since the 1980s, Republican lawmakers have paid the most attention to antiabortion voters, who, they believe, care more about the abortion issue than anyone else. That strategy once made sense: While voters have often favored the Democrats’ position on abortion, few listed abortion as a top issue (only 1 percent of Democrats listed abortion as a major priority in 2021). That made it possible for Republicans to pass unpopular laws without being held accountable: They believed that voters unhappy with a state’s abortion laws simply had other priorities. But the Kansas vote shows that supporters of abortion rights might have success even in some conservative states if they can bypass politicians and go directly to voters.
However, the Kansas vote may be less devastating to the antiabortion movement than it first appears. That’s because the movement’s focus on “states’ rights” was never more than a convenient strategy to win over Republicans and members of the conservative legal movement. The antiabortion movement has really always wanted a national ban on abortion, and now that fight will seem more important than ever.
A federal law banning all or most abortions would be one option to shoot for. Students for Life has already pushed Republican Senate leader Mitch McConnell to signal that such a bill will be a priority if Republicans regain control of Congress. There has been some momentum in the GOP for the idea of a federal “heartbeat” ban, which would criminalize abortion two weeks after a missed period. And the structure of the Senate and Electoral College may make the success of such a bill easier to imagine.
But the Kansas vote suggests that a national law would be a risky strategy. Even if Republicans could be persuaded to pass one, Democrats could repeal it if they gain control of Congress and the White House.
That’s where the federal courts come in. State courts may be more responsive to voters: Some state judges are elected, and others face retention elections. But federal court judges have lifetime appointments and are almost impossible to remove.
That means the new antiabortion dream is a Supreme Court decision holding abortion to be unconstitutional and banning the procedure nationwide.
That would vindicate the longstanding beliefs of a movement that mobilized to demand constitutional fetal rights. And with a conservative supermajority in place, antiabortion leaders would not have to worry about the will of the people. The recent decision in Dobbs v. Jackson Women’s Health Organization telegraphs that the Supreme Court is not concerned about popular opinion, either. The court suggested that the justices could not tell how the public would react to their rulings and should not care even if they could.
The Kansas vote reinforces what polls have told us for some time: Most Americans don’t want to lose the right to abortion. But win or lose, antiabortion leaders may not be too worried. Their goal remains the protection of fetal rights, no matter what the American people want.
Mary Ziegler, a professor of law at the University of California, Davis, is the author of “Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment.”