Opinion: Abortion back on ballot, indirectly

Abortion is on the November ballot in Kansas, at least indirectly. Our judicial and gubernatorial elections are critical for determining whether Kansas moves toward banning abortion long term.

But most Kansas voters are pro-choice and just rejected an anti-abortion constitutional amendment. Didn’t that settle the issue?

No.

Let’s say that your goal is banning abortion in Kansas. Maybe you support Kansas House Bill 2486 that would have banned abortion except in limited circumstances, with no exception for rape, incest or many threats to women’s life or health. How do you get that ban into law?

Strategy one: Constitutional amendment.

This was the amendment that just failed. It would have reversed the Kansas Supreme Court’s Hodes ruling on abortion access, allowing Kansas legislators to then ban abortion.

Kansans voted in huge numbers against that amendment, but many conservative activists are struggling to accept those results. Some have alleged imaginary large-scale voter fraud. Others have delegitimized the vote, saying that Kansans were “fooled” or “misled.” Others have said they will just find another way to ban abortion.

Cue strategy two: Changing the courts.

If voters won’t overturn the Hodes ruling, then the Kansas Supreme Court must reverse its own decision on the case to enable banning abortion. That likely requires changing the judges on the court. How does that happen?

When court openings occur, a nominating commission reviews applicants on merit and presents the governor with three finalists. The governor appoints one. This helps depoliticize court politics by limiting executive power, but governors often still exercise some ideological influence over their appointments.

Judges must then face periodic retention votes. If voters keep a judge, the judge serves a six-year term. If voters oust a judge, then the governor appoints a replacement.

Six of seven judges on the Kansas Supreme Court face retention elections in November, five of whom were appointed by moderate Republican or Democratic governors. If voters oust any of these judges, then the next governor picks their replacements.

How can conservatives use this process to ban abortion? Step one: Oust judges this November. Two: Elect Republican Derek Schmidt as the next governor. Three: Leverage politics to the extent possible to appoint new judges who are more anti-abortion. Four: The new judges must reverse Hodes. Five: The Kansas Legislature then passes an abortion ban. Six: Schmidt signs that ban.

Obviously, it would have been easier for conservatives if Kansans had passed the abortion amendment and allowed them to skip to step five immediately, but that didn’t happen. That leaves conservatives with taking a more complicated and longer route to an abortion ban.

No matter your position on abortion, your bottom line is this: If you keep the Kansas Supreme Court judges, that likely protects abortion access for now. If you oust the judges, you raise the odds of an abortion ban.

And, our candidates for governor should answer tough questions about abortion, even if they prefer dodging them. Will abortion affect their judicial appointments? Would they sign an abortion ban? Do they support abortion ban exceptions for rape, incest or the life or health of women?

So rather than being settled, your choices in November will absolutely affect abortion access in Kansas. Now that abortion bans are a political reality in America, don’t expect this issue and its complicated politics to disappear.

— Patrick R. Miller is an associate professor of political science at the University of Kansas.

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