Anti-abortion lawmakers and officials in Kansas are frustrated. They cheered as the Supreme Court overturned Roe v. Wade and erased federal protections for abortion rights across the country. They watched as most of their neighboring states took the opportunity to clamp down on the procedure or even ban it outright. They hoped that they could do the same thing in their own backyard.
But they can’t. Abortion rights are still protected by the state Constitution in Kansas, and so state lawmakers there have had to think outside the box. Kansas Senator Chase Blasi introduced a bill last week that would try to do an end run around the state Supreme Court. Instead of banning abortion through state law, Senate Bill 65 would give local authorities the power to pass abortion restrictions. The proposal is also in direct defiance of a vote last year by Kansans to keep the abortion rights status quo intact. It is also further proof of conservatives’ own ideological flexibility when it comes to local governance.
Kansas is one of the most watched front lines in the post-Dobbs battles over abortion rights, thanks to a unique set of circumstances. In 2019, the Kansas Supreme Court ruled in Hodes & Nauser v. Schmidt that the state Constitution protected an individual right to obtain an abortion. The justices, who noted that some of the Kansas Constitution’s protections of rights are broader than its federal counterpart’s, grounded the ruling in provisions that protect a person’s right to bodily autonomy.
While Kansas isn’t quite a deep-red state—it currently has a Democratic governor and one Democratic representative in the U.S. House—it also has a staunchly Republican state legislature and typically votes for Republican presidential candidates. After Dobbs lifted the federal protections for abortion rights, state GOP lawmakers pushed for a ballot initiative for the 2022 election that would effectively overturn the 2019 ruling by amending the state Constitution.
That amendment, if implemented, would have disclaimed any state constitutional right to an abortion and given the state legislature new powers to further regulate or even ban the procedure. Kansas voters largely rejected the amendment last November by a 59–41 percent margin, leaving intact a status quo where abortion remained legally available in the state. The amendment’s defeat was one of the abortion rights movement’s most significant victories in a midterm election where millions of voters weighed in on the topic across the ballot.
Enter the new state bill, which is in many ways unsurprising. When faced with a constitutional or judicial hurdle, anti-abortion advocates have often tried to be too clever by half. In the 2010s, multiple states passed what became known as “TRAP laws,” which stood for “targeted restrictions on abortion providers.” Lawmakers in Texas, Louisiana, and elsewhere in the country passed onerous health and safety provisions that they hoped would drive abortion providers out of business without actively banning the procedure.
The Supreme Court, however, saw through the ruse. The justices struck down Texas’s version of the law in Whole Woman’s Health v. Hellerstedt by a 5–4 majority, with then-Justice Stephen Breyer writing that the state had shown no evidence that the restrictions were rationally tied to protecting maternal health. In June Medical Services v. Russo, the court narrowly reiterated its ruling in Hellerstedt to strike down a virtually identical law in Louisiana. Chief Justice John Roberts provided the fifth vote on precedential grounds, handing anti-abortion activists their last major defeat at the high court before Dobbs.
An even better example came in 2020 when Texas implemented Senate Bill 8. That law created a legal mechanism for private citizens to sue anyone who helped facilitate an abortion and allowed them to obtain at least $10,000 in damages if successful. S.B. 8 stood in direct defiance of Roe v. Wade’s protection of abortion rights by creating a potent chilling effect on access to the procedure. Since S.B. 8 also explicitly forbade state employees from using the mechanism, it also evaded the normal methods by which federal courts review unconstitutional state laws.
This time, a five-justice majority on the Supreme Court bought into the gimmick. The court’s conservative justices refused to block the law when it reached the court’s shadow docket in September 2020, effectively nullifying Roe v. Wade in the state of Texas. Chief Justice John Roberts sharply criticized his fellow conservatives for allowing a state to scrap a constitutional right in defiance of judicial precedent. “The nature of the federal right infringed does not matter; it is the role of the Supreme Court in our constitutional system that is at stake,” he wrote when the court ruled on the case in full that December.
The S.B. 8 battle became moot last year when the Supreme Court overturned Roe v. Wade. But the spirit of using legal and regulatory arbitrage to overcome democratic and judicial obstacles to conservative goals is alive and well. It is also particularly ironic given the broader trend of Republican state legislatures turning against city and county governments when they choose something other than conservative priorities.
Some Republican-led states, for example, have passed laws that forbid cities from cutting their own police department’s budget. GOP governors in Florida, Texas, and elsewhere have issued executive orders that prevent local health officials from issuing their own public health orders to combat the Covid-19 pandemic. Similar efforts to preempt local governments on matters ranging from school curriculums that discuss race to LGBT anti-discrimination ordinances to expanding access to polling places and absentee ballots have been squashed by domineering Republican state legislatures.
All of these moves cut against the stated conservative ethos of decentralized governance. For years, the clarion cry of the anti-abortion movement was to let states decide their own abortion laws. Among conservatives, it was to reclaim power more generally from Washington and defer to local values. In practice, however, those supposed values are subordinated to an overwhelming drive to win the culture wars at any costs, whether through legislative trickery or local preemption. There is only one constant in where Republicans say they want governance decisions to be made: wherever they can win them.
