“What’s the matter with Kansas?”
The question in the title of Thomas Frank’s 2005 book arguing that social conservatives persuaded the heartland to vote against its economic interests by fighting the culture war is being posed by the other side after Kansas voted to keep a right to abortion in the state constitution.
Not only did the “Value them Both” amendment paving the way to greater abortion restrictions fail by nearly 20 points, going down 59% to 41%, but more Kansans voted in this referendum than in any primary in the state’s history.
Republicans are naturally concerned that this shows abortion can roll back the red wave by turning out voters following the reversal of Roe v. Wade, despite polling suggesting that inflation and the economy remain the top voter concerns and single-issue abortion voters continue to skew pro-life, as has generally been the case since the 1980s.
It should also focus pro-life minds. Dobbs v. Jackson Women’s Health Organization means that abortion policy is no longer subject to the whims of the Supreme Court. But it remains constrained by public opinion.
As the results rolled in, Cook Political Report’s Dave Wasserman tweeted, “It’s possible the margin for ‘No’ in red Kansas will be a resounding double digits, a sign of just how unpopular overturning Roe v. Wade is nationally.” But there is literally nothing in the Kansas vote that contradicts the Supreme Court. Dobbs did not mandate the opposite abortion policy from Roe. It sent the decision-making power on how to weigh the trade-offs between protecting fetal life and respecting a woman’s bodily autonomy back to the people and their elected representatives.
Dobbs does allow the people to enact total abortion bans. Pro-lifers in some states, frustrated by court’s blocking of legal protections for unborn children for nearly half a century, have responded to this opportunity by immediately rushing headlong into passing the most sweeping restrictions possible. In some states, this reflects the public consensus.
This will only be as sustainable as the democratic majorities pro-lifers can keep behind them as they pass new legislation. “So where there is consensus on limiting abortions, let us codify,” Steve Forbes said during one his campaigns for the Republican presidential nomination. “From there, let us persuade.”
Forbes ran not long after the Supreme Court last reconsidered Roe. The 5-4 Casey v. Planned Parenthood decision was a massive disappointment to the pro-life side at the time, but in many ways a political boon. The court upheld the core holding of Roe while marginally increasing areas in which abortion could be regulated. Parental-notification laws, informed consent requirements, these tended to be areas where public opinion favored limiting abortion and it was the pro-choice activists who were out of step.
Casey’s new fetal viability standard also paved the way for fights over restrictions on later term abortions, especially the grisly procedure that came to be known as partial-birth abortion. This debate made the pro-choice side appear extreme and coincided with pro-life gains in the polls.
But the adoption of the “pro-life” versus “pro-choice” label was never stable because of public ambivalence about abortion. According to Gallup, self-identified pro-lifers were a majority as recently as 2010 and were deadlocked in 2018. The pro-choice marker jumped from 48% in 2020 to 55% the month Dobbs was handed down — to put in another way, from a scant 2-point advantage over pro-life to 16 points.
In the meantime, the plurality to majority of Americans who told Gallup abortion should be legal only under certain circumstances has remained relatively consistent throughout. Those who want it illegal in all cases have never been higher than 23%. To legislate, pro-lifers rely on voters who share their moral qualms about abortion but lack their certitude.
This was true in Kansas, where polling regularly found more support for restricting abortion than Tuesday’s antiabortion amendment received. It is true nationally, where polls showed strong support both for Roe and restrictions Roe made impossible.
Pro-choice activists, and most Democrats, continue to support legal abortion in cases where the public doesn’t. The White House and congressional Democrats are pushing legislation that goes beyond Roe as revised during Casey. But they have so far succeeded in getting the debate sidetracked into an argument over hard cases that make up well less than 10% of abortions per year.
Pro-lifers have allowed themselves to take the focus off elective abortions, which make up more than 90% of those performed annually. Too many Republicans got over their skis on the story of the 10-year-old girl seeking an abortion, seeming to argue that hard cases are not just rare but nonexistent.
The good news is that it does not have to be this way. Pro-life gains can be made while working within the confines of today’s consensus, and that consensus can still be changed over time. But those changes cannot simply be assumed or willed into existence.
Dobbs has handed the democratically elected branches of government an awesome power to protect life. Pro-lifers are understandably eager to use it. They can’t forget that it ultimately comes from the people.