https://www.newyorker.com/news/dispatch/the-first-post-roe-vote-on-abortion

The First Post-Roe Vote on Abortion

Dinah Sykes, a Democratic state senator in Kansas, door-knocking in Kansas City.Photographs by David Robert Elliott for The New Yorker

When Justice Samuel Alito and his colleagues squinted at history and ruled that the U.S. Constitution included no right to abortion, Dinah Sykes felt her heart sink. But here she was, on an evening in July, sweating through her blue T-shirt in ninety-five-degree heat, trying to persuade Kansans to block an effort to remove the right to abortion from the state constitution. She held a stack of flyers and carried a bottle of water in a cloth bag slung over her shoulder. A blond ponytail poked through the back of her baseball cap. “Sixty per cent of Kansans believe a woman should have a right to choose,” she said, as she walked from house to house. “And they should not have someone else’s beliefs forced upon them.”

Sykes, a local lawmaker, was in Merriam, a southwestern suburb of Kansas City. Early in her two-hour canvassing session, she climbed the steps of a split-level home and rang the bell. When Adrienne Maples, a professional photographer, came to the door, Sykes launched into her riff: “Are you aware that there is a referendum on the August 2nd ballot?” Before Sykes, who is the Democratic minority leader in the Kansas Senate, could finish explaining that the vote may lead to an abortion ban, Maples interrupted. “I’m pretty sure there are a lot of pissed-off women who will be voting no,” she said. Maples planned to be one of them. “I’m concerned that we’re slipping backwards. This is scary.”

On Tuesday, in the dead of summer, when many Kansans are on vacation and college campuses are largely empty, voters will be asked to amend the state constitution, and give license to the Republican-dominated legislature to rewrite the state’s laws on abortion. It will be the nation’s first direct electoral test of abortion rights since the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization. The Catholic Church is spending millions to advance the amendment, while a broad coalition of pro-choice organizations is scrambling to stop it, testing a new message tailored to appeal to independents and moderate Republicans. The pitch casts the amendment as an infringement on personal liberties—a government mandate “designed to interfere with private medical decisions.” The front of the flyer that Sykes was tucking into screen doors did not mention abortion. It said “It’s up to us to keep Kansans free by Voting No!”

The state G.O.P., which controls more than two-thirds of the legislature, deliberately placed the referendum on the August 2nd primary ballot, knowing that few Democratic races would be contested and that Republicans were the most likely to turn out. Unaffiliated voters, who make up nearly thirty per cent of the electorate in Kansas, have even less reason to show up, as they can’t vote in party contests. In Dobbs, Alito quoted Justice Antonin Scalia, who argued that the issue of abortion should be “resolved like most questions in our democracy: by citizens trying to persuade one another and then voting.” This vote seems designed to keep many citizens out of it. “Very cynical,” Kathleen Sebelius, a Democratic former Kansas governor, told me. Turnout for the past midterm primary election, in 2018, was twenty-seven per cent. In the general election that year, it was fifty-six per cent. “They wanted to handpick their voters,” Sykes said. If the referendum passes, she expects to see legislation by January that would largely outlaw abortion.

Sykes in her office.

The referendum has been in the works for three years, and, until recently, seemed likely to sail through. Then came the Dobbs decision. By ending the federal right to abortion and allowing state legislators to set any rules they want, the Supreme Court energized pro-choice voters, especially women. (Recent polling shows a close contest, with the anti-abortion side slightly ahead.) In Johnson County, the most populous county in Kansas, where pro-choice forces must run up the score if they hope to win, supporters collected five thousand “Vote No” signs from the Democratic Party in the week after the ruling. “It’s been crazy,” Deann Mitchell, the Democratic chair, told me. “So many people have been jumping into the game.” Fred Sherman, the county election commissioner, said that, without Dobbs, turnout would have been low, but now it will be “a blowout.”

I caught a glimpse of the energy on July 4th, when I drove to Topeka for the fifty-first Collins Park Neighborhood Parade. The parade is a cheery affair: just a quick trip around a strip of green in an upscale neighborhood before the Independence Day picnics begin. Four bagpipers in tartan kilts marched in train with vintage cars, an assortment of kids in wagons, and an adult in a Captain America costume. Flags fluttered and spectators cheered. Laura Kelly, the Democratic governor, was there, riding on the back of a classic red Ford Mustang convertible. A few minutes behind her, two groups of vote-no activists appeared. One woman, dressed like a suffragette, propelled herself on a three-wheeled contraption that resembled a penny-farthing. A handwritten sign attached to the back said “Still Marching for Women’s Rights.”

Topeka is outside Johnson County, but, for pro-choice forces, it is still in run-up-the-score territory. I walked alongside Denise Beason, who was handing out “Vote No” bumper stickers. The text, which, again, did not include the word “abortion,” said “Protect Kansans. Vote No August 2 on the Constitutional Amendment.” Beason was eighteen when Roe was decided. “I never thought we would be at this place, at this time,” she told me. The way forward, she said, pointing to the pro-choice marchers, is a “lot of this, a lot of getting young people to vote.” I turned to her daughter Ashley, who walked beside her and held a “Vote No” sign above her head with both hands. Someone applauded. “Thank you!” Ashley called out. She has three young daughters and sees reproductive freedom as “the great equalizer.” If Kansas bans most abortions and one of her daughters needs one, she has the means to travel to another state. “So many women don’t have that access,” she said. “That is really what we should be fighting for.”

In the nineteen-sixties, Kansas was in the national vanguard of abortion legalization. “It wasn’t contested,” Beth Bailey, a history professor at the University of Kansas, told me. “A whole group of people, including the Kansas Council of Churches here, worked really hard to push for elective abortion.” Bailey, who first moved to the state in 1987, lives twenty minutes from the K.U. campus, in a sleek house that overlooks a stretch of prairie. Her book “Sex in the Heartland” traces the importance of the sexual revolution between the coasts. Abortion was so uncontroversial that it’s barely mentioned. “There was tons of talk about sex,” she said. “There was tons of sex. But abortion just wasn’t something people seemed concerned about. The fact that it has become the key dividing issue in the state is shocking to me.”

Women travelled from other states to Kansas to terminate pregnancies. By 1973, when the Supreme Court made abortion legal throughout the country, seventy-five per cent of Kansans believed the decision should be left to a woman alone, or a woman and her doctor. (Opposition was much higher nationwide; in a Gallup poll taken before the ruling, forty-five per cent of respondents opposed even first-trimester abortions.) According to the historian Jennifer Donnally, the rate of legal abortions in Kansas far exceeded that in neighboring states. Anti-abortion activists took note, and, by the end of the decade, had begun to build a diffuse but increasingly effective coalition, rooted in Christian church organizations and strengthened by public protests against abortion providers, notably four clinics in Wichita. The biggest target was Women’s Health Care Services, operated by George Tiller, one of the few doctors in the country who performed abortions late in pregnancy. He sometimes wore a button to work that said “Trust Women.”

Tiller’s one-story clinic in eastern Wichita saw some of the most virulent anti-abortion demonstrations in U.S. history. In 1986, a pipe bomb planted by a protester blew a six-foot hole in the clinic wall and did tens of thousands of dollars in damage. In 1991, Operation Rescue, a national organization, partnered with activists in Kansas to stage the Summer of Mercy, a weeks-long protest in which abortion opponents physically blocked women from reaching clinics by lying down in front of their cars. More than twenty-five hundred people were arrested. On the protest’s final day, a crowd of more than twenty-five thousand attended a rally, which was held in a college stadium and featured an address by Pat Robertson, the evangelical leader. The episode energized the growing anti-abortion movement in the state and across the country. The following year, Kansas legislators tightened restrictions on abortion. In 1993, an activist shot Tiller outside the clinic. (He was hit in both arms, but survived.) Sixteen years later, a man assassinated Tiller as he handed out bulletins to fellow-members of the Reformation Lutheran Church in Wichita. Randall Terry, the founder of Operation Rescue, said Tiller “reaped what he sowed.”

If the referendum passes, Sykes expects to see legislation by January that would largely outlaw abortion in Kansas.

In 2015, after a series of failed attempts to further restrict abortion, the Kansas legislature passed a law that prohibited dilation and evacuation, or D. & E., the most common technique used in second-trimester abortions. Two doctors—a father and a daughter—filed suit, arguing that other methods were more dangerous and imposed a greater burden on the pregnant person. The case ultimately pivoted on the Kansas Supreme Court’s interpretation of the state constitution, and whether it granted a right to abortion. The court spent more than two years working out its reasoning, which relied on a close reading of the 1859 constitution and the debates that preceded its passage. In 2019, in a 6–1 decision, the majority wrote that “the historical record overwhelmingly shows an intent to broadly and robustly protect natural rights and to impose limitations on governmental intrusion into an individual’s rights.” The right of personal autonomy in the state constitution, they wrote, “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.” (D. & E. remains legal.)

To supporters of the August 2nd referendum, the 2019 ruling was the work of six “unelected liberal judges appointed by pro-abortion politicians.” (Four judges were appointed by Sebelius, the former Democratic governor, and two by Bill Graves, a moderate Republican.) A spokesperson for Value Them Both, the umbrella organization advancing the amendment, has said that defeat would mean “an unregulated abortion industry with no limits at all.” The group’s advertisements plead for Kansans to “restore common-sense abortion limits.” In fact, the 2019 ruling left in place many restrictions, which are deemed constitutional if they are narrowly tailored and serve a compelling interest. The state requires an ultrasound and a twenty-four-hour waiting period, prohibits almost all abortions more than twenty weeks after conception, and bans telemedicine appointments that could be used to acquire pills for medication abortions, which, according to estimates, accounted for more than half of abortions nationwide in 2020. It also mandates parental consent or a judicial waiver for anyone under the age of eighteen. Clinics are regulated and abortions must be performed by physicians. Only in rare cases will the state government pay for the procedure.

As the contest has intensified and money has poured in, Value Them Both and its allies have portrayed the statewide vote as a referendum on national politics, and suggested that the pro-choice forces in Kansas are pawns of outsiders. A flyer says that “Joe Biden and his left-wing allies are forcing an extreme abortion agenda on Kansas.” A television ad, paid for by Kansans for Life, includes a photo illustration of Joe Biden, Nancy Pelosi, Elizabeth Warren, and Alexandria Ocasio-Cortez, and urges voters to stand up to the “left-wing army.” A yes vote, the ad says, would stop late-term abortion. There have been no late-term abortions in Kansas since 2018.

The main financial backer of Value Them Both is the Catholic Church, which has contributed more than four million dollars. Much of the funding has come from the Archdiocese of Kansas City, led by Archbishop Joseph F. Naumann, who has said that abortion “entices and encourages women to attack an essential part of their femininity.” Naumann has made clear that he favors legislation that will ban abortion—“protect every unborn child,” as he puts it—and he believes that Biden, a pro-choice Catholic churchgoer who carries a rosary, should not take communion. In early July, I attended a Sunday mass at Holy Trinity Catholic Church in Lenexa, a suburb of Kansas City. The church, with a soaring modern nave, serves a parish of about twenty-five hundred families. A lay person, called to a lectern, addressed the congregation: “In thanksgiving for the Supreme Court decision, we pray for passage of the Value Them Both amendment, so that Kansans may better protect women and preborn children from the abortion industry.” The congregation replied, “Lord hear our prayer.” The church bulletin devoted a full page to Value Them Both. On a table in the lobby was a stack of voter-registration forms.

Susan Humphries, a Republican state representative, in her home. 

Some of the most staunchly conservative areas in Kansas lie to the west, where the campaign expects to do well. In Wichita, I met Susan Humphries, an adoption attorney and a Republican state representative, on the patio of a coffee shop. She had cut short a family vacation in Arkansas to knock on doors, hand out signs, and otherwise talk up the pro-amendment effort. Humphries believes that life begins at conception, and that there is no moral difference between aborting a ten-week-old embryo and killing a one-year-old child. She “loved” the Dobbs ruling for multiple reasons, including the court’s decision to send the matter “closer to home, back to the people.” If the amendment is approved, it means that the legislature, which has a Republican super-majority, could approve virtually any abortion legislation it likes.

Value Them Both and its allies appear to have made a deliberate decision not to discuss what would happen if the yes campaign wins. When I asked Humphries whether a near-total ban was the goal, she demurred. “We’re not talking about that,” she said. When Kansas Reflector obtained audio of a former Value Them Both regional director telling voters that strict anti-abortion legislation is ready to go, a spokesperson for the coalition said, simply, that the amendment “is not a ban on abortion.” The circumspection seems disingenuous. When I pressed Humphries, she said she wants to ban the D. & E. procedure that triggered the 2019 Supreme Court case. She left little doubt that the legislature would stop there: “We’re talking about a being that has a separate DNA and a heart. I favor protecting those most vulnerable humans.”

The ballot language itself gives no clues about what might follow. “It’s extraordinarily confusing,” Beth Bailey, the history professor, who favors access to abortion, said. “I sat down several months ago and looked at it and, I swear, I would have been confused which way I was supposed to vote.” This is the wording, in full, to which voters are asked to respond yes or or no:

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 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.

Humphries said she “loved” the Dobbs ruling for multiple reasons, including the Court’s decision to send the matter “closer to home, back to the people.”

On June 24th, the day the Supreme Court announced its decision in Dobbs, the vote-no coalition, which calls itself Kansans for Constitutional Freedom, saw a surge in donations—a hundred thousand dollars on that day alone. The organization, which includes representatives from the A.C.L.U. of Kansas and the advocacy wing of the local Planned Parenthood, has now outraised Value Them Both by nearly two million dollars. The number of volunteers knocking on doors and phone-banking has grown tenfold, with several hundred people a week taking shifts, almost all Kansans. A central preoccupation has been to reach beyond Democrats to capture the voters most likely to cast ballots in August. Ashley All, a spokesperson, told me that the organization used polling and focus groups to learn how “people in the middle”—moderate Republicans, Libertarians, and independents—talked about abortion. “When you explained this decision in the context of privacy and personal liberty, people understood that this was something that women ought to be able to decide for themselves, free from government interference,” All said. The ad that polled best was a television spot that urges viewers to “say no to more government control.”

In eastern Wichita, the clinic once owned by George Tiller still provides abortions. Now called Trust Women, it is directed by Ashley Brink, who is thirty-one years old and has been doing abortion work in the region for a decade. (She recently worked to defeat a referendum in Colorado that would have banned abortions after twenty-two weeks. The measure lost by more than five hundred thousand votes.) Brink worries about her clients, should the Kansas referendum pass. On the day I visited, a lone man paced the sidewalk, just beyond the eight-foot-tall fence protecting the parking lot, with a sign that echoed the slogans used in the Summer of Mercy: “Babies are murdered here.” At the gate, another man handed me a pamphlet. On one page, it read, in large blue letters, “If you are pregnant, you are already a mother. No one can change that. An abortion decision will only make you the mother of a dead child forever.” Brink, the ten or so doctors, and the staff, are accustomed to worse. “They call us names. They take pictures of all of us,” Brink said. “They videotape our license plates. It’s the First Amendment, I get it. But, in any other job, you would be, like, ‘This is harassment and stalking.’ ”

Trust Women handles about thirty appointments on a busy day. As nearby states restrict abortion access, patients have arrived in Kansas in greater numbers. (Value Them Both has said that the state will be a “permanent destination for extreme abortion procedures.”) Brink’s clinic was already struggling to meet the demand for care when, in September, Texas banned most abortions after six weeks, which is before most patients know they are pregnant. Oklahoma followed, nine months later, by prohibiting virtually all abortions. Around half of Trust Women’s patients now come from those two states, with a trickle from Arkansas, Louisiana, and elsewhere. The clinic has seen twice as many patients this year as it did during the same period last year. The day Dobbs was decided, women called from waiting rooms as far away as Alabama and Wisconsin after clinics there halted abortions. “It’s now pushing Kansans out of the reach of care, because the appointments here are taken,” Brink said. “There are always people that are left behind.”

Andrea Jewell, a Kansas City gynecological oncologist who predominantly treats patients from Kansas and Missouri, has seen firsthand the dilemmas facing medical providers in the post-Roe world. Within hours of the Dobbs decision, Missouri banned almost all abortions, forcing doctors into complex consultations with hospital lawyers. Jewell told me about one severe case in which lawyers said a surgeon could not operate until a patient with an ectopic pregnancy was less medically stable. Hours later, the patient had half a litre of blood in her abdomen, and the surgeon stepped in to save her life. “We take a Hippocratic oath to do no harm,” Jewell said. “Now,” she added, politicians are “passing laws that are literally telling us to harm our patients.” She and her colleagues are terrified that the same will happen in Kansas.

In my interviews, uncertainty was a common theme. Dinah Sykes, the Democratic state senator, shared an e-mail from a constituent in Lenexa who said that his wife has health conditions that could lead to a high-risk pregnancy. “We are seriously considering moving away from Kansas,” he wrote. “We do not feel it is safe to start a family here if the trend continues.”

Sykes meeting Donna White while door-knocking. 

If the central concern of the no campaign was that pro-choice voters wouldn’t be paying attention, the Dobbs decision and millions of dollars in campaign money have changed the equation. On the night I tagged along with Sykes, she found considerable support. “Of course I’ll be voting no,” Lauren Ryan, a health-care worker, told her. At another house, Colleen Boeding, a seventy-three-year-old Catholic, answered the door in a Kansas City Royals T-shirt and said that she, too, will be voting no. For months, Boeding said, she had been bothered by the pitch for the amendment during Sunday mass. News of the millions donated by the Catholic archdiocese made it worse. “That’s a lot of money. It could have done a lot of good someplace,” she said. She had never before taken a public stand on abortion, but she asked where she could get a “Vote No” sign, and later planted it in her front yard. Two weeks after that, she volunteered to help the campaign.

The activity on the airwaves and at the doorways post-Dobbs is boosting turnout projections. Early voting at the Sedgwick County Historic Courthouse, in downtown Wichita, began on July 18th. I stopped by a few days later, during lunchtime, to find half a dozen people waiting in line outside the election office. (Some of them already had their I.D.s in hand—a requirement to vote in Kansas.) When Wes Rogers, a Wichita businessman, emerged from the courthouse, he said he had voted yes. “I’m a firm believer that life begins at conception,” he said. “A no vote would allow for the continued legalization of abortion. A yes vote would turn that off.” If the amendment passes, he hopes that the legislature will ban abortion, perhaps with a few narrow exceptions. “There’s always going to be someone out there willing to adopt,” he said. “Pretty much everyone will vote yes. Kansas is pretty conservative.”

A few minutes behind him, Cyd Gilman and her mother, Carole, stepped into the afternoon heat. Both wore masks— rare in Kansas these days—and both had voted no. “Because of this issue, I would’ve crawled here,” Gilman said. She was in college, in 1973, when the Supreme Court ruled on Roe. She went to law school and then to the federal public defender’s office in Wichita, where she represented clinic protesters during the Summer of Mercy, despite disagreeing with their methods and their cause. (She is now retired.) She pointed to her mother. “She raised me to believe I can do anything I want as a woman,” she said. For Carole, who is eighty-seven years old, the U.S. Supreme Court and the Kansas legislature are laying siege to that sense of possibility. “Actually, I’ll cry,” Carole said, choking up. “It really hurts my heart.” ♦

Humphries looking through campaign materials in her garage. 
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