Government regulation of women who become pregnant from rape has suddenly grabbed national headlines. That’s because state legislatures around America are considering numerous controversial bills that would ban abortion access for these women.
In Kansas this year, a conservative lawmaker introduced House Bill (HB) 2746. It bans abortion except in very limited circumstances, with no exception for rape, incest, or many threats to a woman’s life or health. It also seemingly allows the prosecution of certain women who get abortions and their doctors.
HB 2746 didn’t get serious consideration, but the House Majority Leader did not rule out considering it next year when speaking to the Kansas City Star.
That “next year” part is key.
Right now, abortion is legal in Kansas but with significant limitations imposed by the legislature. However, that might soon change.
If the U.S. Supreme Court overturns Roe v. Wade this year and if the abortion amendment on the August primary ballot in Kansas passes, then the Kansas legislature could pass something like HB 2746 and it could actually be enforced.
If that August amendment fails, then something like HB 2746 would likely not be enforceable in Kansas, no matter what happens to Roe. Put simply, the August abortion vote decides the future of abortion access in Kansas.
Since “the rape exception” is getting national headlines, let’s focus there. The Kansas Bureau of Investigation reported 1,190 rapes in Kansas in 2020, though the real number is likely higher since sexual assault often goes unreported.
There is no consensus on how many rapes result in pregnancy, but 5% is often cited from a 1996 study. Given that, then at least 60 Kansas women likely became pregnant from rape in 2020. That seems small, unless it’s you or a loved one.
The rape exception has long bothered anti-abortion activists, dating at least to Eugene Quay’s famous 1961 Georgetown Law Journal article. These activists sometimes argue that women will just lie about being raped if rape exceptions to abortion bans are allowed. Some have also advanced junk science saying that rape cannot cause pregnancy, which inspired Todd Akin’s controversial “legitimate rape” comment in Missouri in 2012.
The rape exception has broad support in Kansas. The 2021 Kansas Speaks survey from Ft. Hays State University shows that only 20% of Kansas adults support banning abortion in cases of rape.
That’s a tough realty for anti-abortion activists. If their true endgame is something like HB 2746 that bans abortion in Kansas even for rape victims, saying that publicly won’t win votes this August.
Instead, many amendment supporters are distorting the issue into something more palatable, falsely claiming that the 2019 Hodes ruling from the Kansas Supreme Court declared every abortion restriction in Kansas illegal and bans the legislature from regulating abortion.
But that’s not reality, and not what Hodes actually did. Rather, it’s a hypothetical legal argument, unlike HB 2746 which actually exists. Three years after Hodes, abortion is still heavily restricted in Kansas. The sky hasn’t fallen on abortion regulations.
Borrowing a phrase from the late Republican Senator John Warner, the typical Kansan is “pro-choice with limitations, pro-life with exceptions.” The fate of abortion in Kansas is in our ambivalent hands this August. Kansans deserve forthright discussion about the complex reality here and the actual stakes of this abortion vote.
