State constitutions to loom large in abortion fight
If the U.S. Supreme Court overturns Roe v. Wade, as a leaked draft opinion indicates it will, Missouri Attorney General Eric Schmitt will soon after issue a legal opinion confirming the decision and triggering a near-total abortion ban in the state.
But that will only mark the beginning of Missouri’s post-roe fight over abortion.
“It doesn’t end, trust me,” said Samuel Lee, a lobbyist for Campaign Life Missouri.
The question of abortion rights almost certainly won’t be answered in any semi-permanent way until it’s settled in the state constitution, either by an amendment that affirms or rejects the right to the procedure — or a decision by the Missouri Supreme Court on whether the state constitution already protects the right to an abortion.
Kansas and Missouri’s constitutions are set to play a critical role in upcoming battles over abortion.
A 2019 Kansas Supreme Court decision finding that state’s core governing document contains the right to an abortion set the stage for a high-stakes statewide vote this August on repealing the decision. Abortion rights supporters could seek a similar decision from Missouri courts.
Regardless of how judges rule, both sides of the abortion divide may push for amendments. Already, some Missouri Republicans are renewing calls to give lawmakers power over abortion policy.
State constitutions — at least in Kansas and Missouri — are playing an increasingly central role in fights over some of the most divisive political issues of the day. At a moment when the federal government is often unwilling or unable to act, states are looking to their constitutions for solutions.
“With Congress becoming more and more and more polarized, the states are taking more and more and more liberties,” said Rep. Emanuel Cleaver, a Democrat who represents Kansas City.
“Every time you see an opening, when the states do something, in most cases it’s because the federal government did not take steps to address whatever the issue is,” Cleaver said. “And so in some cases, what they do is contrary to what might be in the best interest of the United States of America.” Legal fights expected Within weeks, the Kansas Supreme Court is expected to decide whether the state constitution limits gerrymandering after a Wyandotte County District Court judge ruled that the state’s Gop-drawn congressional map violated the Kansas Constitution. Opponents of the map decided to mount their legal challenge in state court after the U.S. Supreme Court made clear the federal judiciary would no longer hear political gerrymandering cases.
In Missouri, Republicans have been pushing for at least the past couple of years to make it more difficult to get constitutional amendments approved through initiative petition. (Kansas doesn’t have initiative petition.) While the proposals vary, most would require the collection of more signatures to get on the ballot or require approval from two-thirds of voters instead of a simple majority.
The effort comes amid conservative complaints that the Missouri Constitution is amended too frequently. In recent years, voters have approved medical marijuana, Medicaid expansion, minimum wage increases and ethics reforms.
All that pales in comparison to the seismic battle ahead over abortion.
A 2019 Missouri law bans abortions except in medical emergencies. The ban only goes into effect, however, if Roe v. Wade is struck down and either the governor, the attorney general or the General Assembly make a finding that Roe has been overturned.
Schmitt, a Republican, has said he would swiftly issue the legal opinion necessary to implement the law. Missouri state Rep. Mary Elizabeth Coleman, an Arnold Republican, wants lawmakers to pass a resolution preemptively before the U.S. Supreme Court’s decision.
“If the reports are true, this would be a landmark victory for life, and the Missouri legislature should take action now to ensure we are doing our part to immediately protect innocent human life in Missouri,” Coleman said in a statement.
The ban could face legal challenges on multiple fronts. Opponents could raise objections that the way in which the law was crafted is unconstitutional because it essentially gives multiple state officials the power to decide whether a law goes into effect. They could also argue it’s unconstitutional because the state constitution contains the right to an abortion.
Eleven states, including Kansas, have constitutions that protect abortion rights more strongly than the U.S. Constitution, according to the Center for Reproductive Rights. The right to an abortion in those state constitutions are grounded in traditions of personal autonomy, such as in Kansas, the right to privacy and anti-discrimination principles.
“It is worth noting that state constitutions can grant rights beyond or different than those that are in the U.S. Constitution,” said Jim Layton, a former Missouri solicitor general. “We certainly have examples of that in the Missouri Constitution.
“For example, we have a constitutional right to collective bargaining in our constitution, which doesn’t exist under the U.S. Constitution. But there’s no express statement regarding abortion in our constitution one way or the other.”
Amendments ahead
Whether the Missouri Supreme Court would ultimately find the right to an abortion in the state constitution, the decision would probably not be the end of the fight. Such a decision would almost certainly lead to an effort to amend the constitution to either prohibit abortion or give the General Assembly power over abortion policy.
In March, Missouri state Rep. Hannah Kelly and state Sen. Andrew Koenig, both Republicans, introduced identical “Protect Children First” amendments in the House and Senate that would empower lawmakers to set abortion policy. Both amendments have passed out of committee but haven’t received floor votes.
Still, the proposals are receiving renewed attention since the draft opinion leaked on Monday, even though just over a week remains in the legislative session.
“I think we should make it clear, and I think let the voters decide whether they want to make it clear,” Missouri state Sen.
Bob Onder, a Lake St. Louis Republican, told t he Missouri Independent, “that there is no right to abortion in the Missouri Constitution.”
Abortion rights supporters haven’t explicitly discussed seeking a Missouri constitutional amendment, but have signaled additional legal fights will come if Roe is overturned.
“If Roe v Wade is completely overruled and no longer has any protections we will be fighting using state protections and other things that we have available to us,” said Emily Wales, CEO of Planned Parenthood Great Plains.
In Kansas, a proposed amendment will prove crucial to the future of abortion rights in the state. Called “Value Them Both” by supporters, the amendment gives the Legislature power over abortion policy — effectively overturning the Kansas Supreme Court’s decision that the state constitution allows women to terminate their pregnancy.
The amendment itself doesn’t ban abortion, but if it’s passed and Roe is overturned, lawmakers would have a free hand to approve a ban. It will likely be the first statewide vote on abortion rights following the U.S. Supreme Court decision expected in June.
The outcome of the amendment also holds implications for Missouri residents. In 2021, 3,458 abortions were performed in Kansas on individuals from Missouri, according to the Kansas Department of Health and Environment.
Constitutional amendments are more rare in Kansas, where they must be approved by two-thirds of the Legislature before going to voters. The abortion amendment is the most hotly-contested proposed change to the Kansas Constitution since voters approved a ban on same-sex marriage in 2005.
“This is the most significant constitutional question in modern Kansas history,” said Bob Beatty, a political scientist at Washburn University in Topeka.