In 1854, Congress passed the Kansas-Nebraska Act, erasing the Missouri Compromise and allowing slavery to expand into the northwest territories by “popular sovereignty,” the doctrine that settlers could vote on whether they wanted to be a free or slave state. Slavery proponents and opponents poured into the Kansas territory, each setting up a government claiming to represent the people’s will. President Franklin Pierce, who claimed in his 1853 inaugural address that “involuntary servitude … is recognized by the Constitution,” recognized the government of the Kansas enslavers while using the military to crush the “Free Staters.” Fatal violence broke out between the two factions. “Bleeding Kansas” proved a precursor to the Civil War.
In 2022, Kansas might again be a precursor, but a precursor to the new United States, transcending party lines to defend abortion rights against a fringe unleashed by the Supreme Court’s conservative majority.
Republicans in the Kansas legislature put a constitutional amendment on the ballot that would have superseded a pro-choice state Supreme Court ruling. It would have greenlit the legislature to start banning abortion. (Current Kansas law only prohibits abortion after 20 weeks, with an exception for a threat to life or “major bodily function.”) The Republican statehouse began its attempt to repeal abortion rights in January 2021, before knowing that the Supreme Court would do so nationally the following year. Still, by scheduling the referendum in the dog days of August 2022, when Democrats rarely have contested primaries and Republicans have many, the pro-lifers hoped to reap the benefits of a low turnout. Kansas has about 850,000 registered Republicans versus 500,000 Democrats.
The Republican legislators made two big miscalculations.
First, not all Republicans want to ban abortion.
At publication time, final results have not been tabulated. But with about 95 percent of the vote in, roughly 535,000 Kansans voted “No” to the anti-abortion constitutional amendment, with 375,000 voting “Yes.” It’s looking like a 60–40 blowout. It’s telling that about 464,000 votes had been counted in the Republicans’ Senate primary, 89,000 more than the “Yes” tally. So at least one-fifth of the Republican vote refused to amend the state constitution to allow abortion bans—and probably more, since some, however few, Democrats and independents are part of the anti-abortion-rights “Yes” total.
Second, Democrats will show up to defend abortion rights.
This was not a low turnout election. FiveThirtyEight number-cruncher Nathaniel Rakich noted on Twitter, “Turnout for the Kansas abortion vote was insane. 243K votes have been counted so far in Johnson County, Kansas, and that’s almost as many as the 271K votes Johnson County cast for governor in the 2018 *general election.* And you’ll recall how insanely high turnout that general election was!”
We have evidence that the Dobbs decision motivated Kansas Democrats to flood the polls. The Democratic strategist Tom Bonier, also on Twitter, shared this fascinating data point: “Among Kansans who registered to vote on or after June 24th (when the Dobbs decision was announced), Democrats have an 8-point advantage. Compare that to the GOP’s overall advantage of 19 pts among all registered voters in Kansas. The landscape changed on June 24th.”
Perhaps with middling Democratic turnout, enough pro-choice Republicans would have still given the “No” forces a narrow victory. But it was a landslide thanks to galvanized Democrats partnering with wayward Republicans.
Does the Kansas result portend a Democratic midterm miracle? That cannot be determined. Just because a Republican or independent protects abortion rights in a referendum doesn’t mean a pro-choice House or Senate candidate will get that voter’s nod. But despite punditry suggesting that voters don’t vote on abortion, Kansas suggests otherwise.
The Kansas landslide also suggests that abortion rights can be protected in many conservative states via referendum, circumventing Republican legislatures. There was a foreshadowing of this in South Dakota when voters defeated abortion bans in 2006 and 2008, and Mississippi voters, in 2011, defeated a state constitutional amendment defining fetuses as persons.
Reproductive freedom advocates can’t pursue ballot initiatives in every state. Most Deep South states—where abortion is or will soon be outlawed—don’t allow citizen-placed laws and constitutional amendments on the ballot. But every western and many midwestern states do. (Kansas isn’t one; statehouse Republicans, not average citizens, are the geniuses who put abortion on the ballot.) So, expect reproductive freedom advocates to put abortion on the ballot wherever possible. Pro-choicers in Michigan are on the verge of doing just that after submitting enough petition signatures to put an abortion rights constitutional amendment on the November ballot. (Abortion opponents in Kentucky and Montana have put their own constitutional amendments on their state ballots this year, although, after Kansas, they may be regretting their decision.) The Kansas result, in a larger sense, is a tonic. We are not as divided as cable TV and Twitter feeds suggest. Majorities support reproductive freedom. Poll after poll has shown this, nationally and in states where Republican officeholders have imposed abortion bans on an unwilling public.
Some anti-abortion conservatives have argued, with cherry-picked poll data, that surveys showing strong support for Roe v. Wade are misleading, pointing to other polls showing support for restrictions. But polls don’t vote. Kansas just did.