WeeklyWorker

11.08.2022

What’s the matter with Kansas?

While the cheering is understandable, the results of the abortion referendum are still problematic. Daniel Lazare comments on a so-called victory for ‘individual rights’

In order to understand last week’s pro-abortion victory in Kansas, it is important to bear one thing in mind.

I am referring to the fact that American politics is not a three-ring or even a 51-ring circus, in which separate political systems hold forth not only at the federal level, but in each of the 50 states. If we include a swarm of local governments, everything from city councils to municipal school boards and other local commissions, it is actually a 90,000-ring circus, according to the latest census.1 That means one governmental unit for every 3,700 people - every last one of them independent, jealous of their ancient constitutional rights, and host to their own special combination of high political drama and low comedy.

If you can imagine Jimmy Stewart in Mr Smith goes to Washington (1939) battling it out not in the US Congress, but in a state legislature, or perhaps on a local zoning board, you will get the picture. Not only is it all quite entertaining: it is too entertaining, because it makes it all too easy to get lost in the process. The more such battles erupt in a super-baroque structure of unsurpassed complexity, the more the structure as a whole subsides into frozen obsolescence.

Which brings us to Kansas - the pancake-flat Midwestern agricultural state that served as a prelude to the US Civil War in the 1850s and is the scene of a similar war between the states today. The latest struggle began in 2015, when a hard-right governor named Sam Brownback set about whittling abortion rights down to zero. But then the state supreme court - a panel filled with judges appointed by Brownback’s Democratic and moderate Republican predecessors - ruled that the state constitution’s sweeping protection of “equal and inalienable natural rights” safeguarded first-trimester abortions after all.

Ironically, the phrase dates from 1859, when pro- and anti-slavery forces were tearing ‘bleeding Kansas’ up, as they drafted rival state constitutions and formed rival state governments. But, where the newly-formed Republican Party once battled slavery, today it is fighting on behalf of a form of neo-slavery, in which a woman’s reproductive organs effectively become the property of the bourgeois state.

The 2019 state supreme court decision thus led to yet another of those inter-branch showdowns that increasingly characterise a broken US political system. Furious Republicans had no choice but to push for a constitutional amendment clarifying that state legislators could regulate abortions in any way they wished. But first they did two things. Since the state constitution requires that amendments be approved by referendum, they opted to hold the vote on primary election day, when turnout is 50% lower and the Republican faithful could be counted on to turn out in overwhelming numbers.

They also opted for the most confusing wording possible. The proposed new amendment thus empowered the state legislature to “pass laws regarding abortion, including, but not limited to, laws that account for circumstances of pregnancy resulting from rape or incest, or circumstances of necessity to save the life of the mother”. This made it seem as if the legislators were out to safeguard women, when in fact ‘regulating’ abortion would allow them to abolish it altogether. It was a distinction that they trusted would be lost on Democrats and independents.

The deck was duly stacked. With similar referenda in Alabama and West Virginia resulting in solid defeats for abortion rights, there was every reason to think that a Kansas referendum would do the same. Dozens of pro-abortion groups poured money and resources into the state, but pollsters and journalists agreed that they would squeak through only if they were extremely lucky.

They were wrong. As results began trickling in on August 2, it soon became apparent that abortion rights had won by a mammoth 59%. Turnout doubled, thousands of Republicans switched sides, and even thinly-populated rural areas in the western part of the state turned thumbs down on the amendment proposal. The New York Times estimated that if a referendum were held nationwide, abortion rights would win 65:35 and prevail in at least 40 states as well.2

Ideological snarl

The vote was a massive repudiation of the US Supreme Court, which had decided less than six weeks earlier to overturn Roe v Wade, the 1973 decision legalising abortion in the first place. Clearly, voters were not pleased to be deprived of a right they had enjoyed for nearly half a century. Even though the US Constitution is supposed to protect democracy, it was a sign that, while rightwing federal judges were heading off in one direction, “we, the people” were heading off in quite another.

It looks like a turn to the left, but is it really? After all, pro-abortion forces went out of their way to stress that the struggle was apolitical and non-partisan. As Senator Chris Murphy, a Connecticut Democrat, tweeted, the bottom line was: “Run on personal freedom. Run on keeping the government out of your private life. Run on getting your rights back. This is where the energy is. This is where the 2022 election will be won.”3

In other words, don’t run on changing the system, democratising government or punishing politicians who are out to tighten America’s minority dictatorship all the more. The upshot is a typical American ideological snarl, in which Kansans voted to protect individual rights by limiting their collective right to make new law. The unspoken assumption is that legislative power is inherently oppressive and that civil liberties will suffer if lawmakers have their way.

The only difference is that, where Republicans want civil liberties to suffer, Democrats look to an unelected judiciary to save the day.

So, while the cheering is understandable, the results are still problematic. The referendum puts wind in the sails of Democrats, even though their record on abortion is somewhere between spotty and miserable. Joe Biden, to cite just one example, is a practising Catholic who declared early in his career that Roe “went too far”, who voted for a reactionary law banning federal abortion funding in 1980 and who, in 1982, voted to topple Roe via a constitutional amendment. Biden wanted to do to Roe what the Supreme Court finally succeeded in doing in June - trample it into the dust.

The results are problematic in another respect as well. Regardless of whether Dems win or lose in the fall, they will be powerless to restore the status quo ante. If the court’s two senior conservatives - Sam Alito and Clarence Thomas, aged 72 and 74 respectively - remain on the bench as long as liberal heroine Ruth Bader Ginzburg did prior to her death in 2020 aged 86, then the rightwing judicial dictatorship has at least a dozen more years to go. Even if Democrats are sincere about restoring abortion rights on a national basis, they will thus have little opportunity until the mid-2030s. Moreover, if Republicans win control of Congress in November - a prospect that is still more likely than not - they could find themselves facing the opposite problem of a nationwide ban. That will be a top Republican priority, and even though the Supreme Court’s current position is that Congress should leave abortion to the states, the conservative majority may end up supporting a ban via mysterious constitutional logic that only they and a handful of outside experts truly understand.4

Kansas may thus turn out to be yet another riveting display in the great American political circus, whose long-term impact is nil. Regardless of what voters say or do, the system will continue running downhill. That means more oppression, more loss of civil liberties, and a constitutional dictatorship that can only grow.

Kansas will meanwhile continue in its long-standing role as a battleground state. While abortion rights have survived, they are still subject to severe constraints. Patients must submit to state-mandated counselling designed to discourage them from going through with the procedure and then wait another 24 hours before it can take place. Clinics must perform an ultrasound, even when medically unnecessary, and then offer to show them the image. Private insurance policies are required to cover abortion only when a mother’s life is in danger, while ‘Obamacare’ (the minimal health coverage that Barack Obama pushed through in 2010) does the same. Doctors cannot use telemedicine to administer abortifacients (ie, drugs designed to abort a foetus in the earliest stages of pregnancy that are actually safer than surgical procedures), which adds to the expense.5

With abortions expected to zoom, now that neighbouring states like Texas, Oklahoma and Missouri have enacted stiff bans, obstacles like these could prove more dangerous than ever. What happens when out-of-state refugees arrive without insurance? What will they do if medical emergencies drive up expenses even more? How will doctors respond if a complication sets in after the first trimester is up? If abortion is ruled out, people may die, which is what happened to Savita Halappanavar - a pregnant woman who died of sepsis in Ireland in 2012, because she was denied an abortion - and a 30-year-old Polish woman known only as Izabela, who last year suffered the same fate.

With public funding banned, private pro-abortion groups will likely step into the breach. But Republicans, whose anti-abortion ardour is undimmed, can be counted on to do everything in their power to prevent Kansas from turning into a refuge state.

So the drama will go on, which is what it always does in the US. But whether it leads to tangible political change is another question.

  1. In 2017, the US census listed 90,126 governmental units at the federal, state and local levels. See Table 1 in: www.census.gov/data/tables/2017/econ/gus/2017-governments.html.↩︎

  2. www.nytimes.com/2022/08/04/upshot/kansas-abortion-vote-analysis.html.↩︎

  3. www.newyorker.com/news/our-columnists/the-kansas-abortion-referendum-has-a-message-for-democrats.↩︎

  4. See www.newyorker.com/news/q-and-a/how-the-supreme-court-could-approach-federal-laws-upholding-or-banning-abortion.↩︎

  5. www.guttmacher.org/fact-sheet/state-facts-about-abortion-kansas.↩︎