Texas now has the toughest abortion restrictions in the United States. What does that mean for Kansas?

Andrew Bahl
Topeka Capital-Journal
A protester in Austin, Texas participates in a protest against the six-week abortion ban at the Texas Capitol on Wednesday. Dozens of people protested the abortion restriction law that went into effect Wednesday.

Kansas abortion providers are bracing for an uptick in patients, with a new law going into effect in Texas that places some of the strictest limits on abortion doctors and clinics in the country.

That debate takes place against the backdrop of a U.S. Supreme Court case likely to prompt a reconsideration of the landmark Roe v. Wade case, in which the court ruled a right to an abortion is protected by the U.S. Constitution. 

Also looming in Kansas is a proposed state constitutional amendment, set to appear on the ballot next August, that could pave the way for greater abortion restrictions in the Sunflower State.

The Texas law bans abortions when a fetal heartbeat is detected, which can occur at six weeks. While there are no explicit exceptions for cases of rape or incest, an abortion can be performed later if a medical emergency occurs.

A divided Supreme Court late Wednesday denied an effort by abortion rights groups to block the Texas restrictions, a change from other similarly controversial abortion laws, which are usually blocked by federal judges before taking effect.

Similar laws have been passed in other states, including Georgia and Missouri.

But a unique feature of Texas' law is in its enforcement mechanism, which allows private individuals and organizations to sue a doctor or clinic that performs an abortion after a fetal heartbeat is detected. A successful plaintiff in such a case could receive at least $10,000 from the abortion provider or others in damages.

Kansas has largely been shielded from similarly stringent abortion measures, a byproduct of a controversial 2019 ruling from the state supreme court declaring the Kansas constitution protects the right to an abortion.

More:Supreme Court declines to block Texas abortion law that bans procedure at six weeks

‘We cannot physically absorb all the need from Texas’

Anti-abortion activists are seeking to overturn that decision, but for now it has meant Kansas is somewhat of an island in the plains region, where many states have passed laws limiting abortion access. During the COVID-19 pandemic, for instance, Texas and Oklahoma ordered abortion providers to close. Gov. Laura Kelly didn't take similar actions

In 2020, 7,542 abortions were performed in Kansas, according to preliminary figures from the Kansas Department of Health and Environment, an increase from 6,916 a year prior.

Over half of the abortions performed involved patients from out-of-state, and while the bulk of those were from Missouri, the number of individuals traveling to Kansas from Texas, Oklahoma and Arkansas increased dramatically from 2019.

In 2020, 289 Texans traveled to Kansas for an abortion, while 277 came from Oklahoma and 74 were from Arkansas. In 2019, those numbers were 25, 85 and 40, respectively.

Those trends are liable to continue in the wake of the Texas law, said Rebecca Tong, acting co-executive director of Trust Women, a network of abortion clinics with locations in Wichita and Oklahoma City.

"We're in talks with our doctors and our staff and lawyers about maybe doing a nighttime clinic," Tong said. "How can we physically see more people at either of our sites? Even if operating the clinics 24/7, I'm still not sure we would be able to see all the people who would be calling."

Oklahoma City is the most logical destination for Texans who are unable to get an abortion in their home state. Tong said the Trust Women clinic in Oklahoma has seen a call volume five times higher than usual, with the facility now booked solid until the end of September.

There has been a small rise in appointments and interest at the Wichita clinic as well, even though it is two-and-a-half hours further than Oklahoma City if driving from Texas.

More:Attorney General Derek Schmidt asks Kansas Supreme Court to rethink major abortion ruling

But the concern among abortion providers is what will happen when demand fills clinics in surrounding states, a worry that is amplified as abortion clinics in Louisiana are scrambling to rebound from the effects of Hurricane Ida and are currently less able to take clients from Texas.

There also are worries about a more stringent abortion law in Oklahoma, set to go into effect in November, that closely resembles Texas' measure. Providers worry this could further reduce options for women on the high plains — for those who have the time and money to travel to a different state.

"The sad reality is that Kansas and Oklahoma, they don't have enough clinics," Tong said. "They barely have enough clinics to cover the populations of Kansas and Oklahoma. We cannot physically absorb all the need from Texas, it's a gigantic state."

Texas debate lays groundwork for hot-button anti-abortion amendment

At a January rally, lawmakers hold signs in support of a proposed amendment to the Kansas Constitution favored by anti-abortion activists and their allies. The debate surrounding the issue is likely to take on a new dimension in light of a Texas law banning abortions after a fetal heartbeat is detected.

The Texas law underscores how visible the abortion issue is likely to be over the course of the next year, both in Kansas and nationally.

The U.S. Supreme Court is set to consider a Mississippi law that bans abortion before viability in what most expect to be a major opening for the high court to overturn an almost 50-year precedent in Roe v. Wade.

A push for a constitutional amendment in Kansas to clarify that abortion isn't a constitutionally protected right, effectively overturning the Kansas Supreme Court ruling, is set to hit the August 2022 primary ballot, just months after a ruling is expected in the Mississippi case.

The expected rise in out-of-state residents seeking abortions in Kansas was a reason to approve the amendment, said Danielle Underwood, communications director for Kansans for Life.

"We realized (the supreme court decision) would increase the numbers of abortions that were happening here," Underwood said. "Then in the midst of the pandemic, we saw that begin to happen. And now we have this situation where Kansans don't want to become a permanent destination for abortion in the region and in the Midwest."

But Rachel Sweet, policy director for Kansas' chapter of Planned Parenthood, said the Texas law clearly showed what was at stake over the debate surrounding the constitutional amendment, which proponents have dubbed Value Them Both.

"We have been sounding the alarm that access to safe and legal abortion ... is in grave danger," Sweet said. "This is another proof point of that."

Rachel Sweet, regional director of public police and organizing at Planned Parenthood Great Plains, testifies earlier this year in opposition to a Kansas constitutional amendment regarding abortion.

She added there is a risk for anti-abortion advocates, arguing laws like the six-week abortion ban in Texas are broadly unpopular. A narrow majority of Americans, about 54%, believe abortion should be legal in all cases, according to a national poll from NBC News, although specific polling on the Texas law is difficult to find.

That could turn sympathetic voters off to the ballot initiative if they believe it will pave the way for similarly extreme measures in Kansas, abortion advocates argued.

"The laws in Texas don't reflect what the majority of voters feel and know, that this should be absolutely legal and available," Tong said.

But Underwood said her group's focus was on Kansas laws which have historically been struck down by state courts, including a 2015 law banning a common second-trimester abortion procedure, which prompted the supreme court's 2019 ruling.

"Really what's happening in other states is of lesser importance to us," Underwood said.

Both sides of the debate over the constitutional amendment say they are beginning to mobilize and get their message out, even though voters won't weigh in for another 11 months. 

And Kansans for Life and abortion activists argue the ongoing national debate will play in their favor when voters head to the polls.

"What we're seeing on the ground is our supporters are extremely concerned about what has happened in Texas, they are really fired up about it," Sweet said. "And I think that is absolutely going to contribute to grassroots energy going into this campaign."

Andrew Bahl is a senior statehouse reporter for the Topeka Capital-Journal. He can be reached at abahl@gannett.com or by phone at 443-979-6100.

USA Today reporter John Fritze contributed to this report.