Editor’s Note: Jill Filipovic is a journalist based in New York and author of the book “OK Boomer, Let’s Talk: How My Generation Got Left Behind.” Follow her on Twitter. The opinions expressed in this commentary are solely her own. View more opinion on CNN.
On Tuesday, voters in Kansas cast their ballots and rejected a measure that would have allowed restrictive abortion laws to go forward in the state. It’s a huge victory for abortion rights: Kansas is the first state to vote on abortion since the Supreme Court’s Dobbs v Jackson Women’s Health decision earlier this summer that overturned Roe v. Wade, and ended nearly 50 years of a constitutional right to abortion.
The result in Kansas confirms that Americans simply do not want an extreme anti-abortion movement regulating women’s bodies. Kansans have said what most Americans believe: abortion is an issue best left to women and their doctors.
The vote was much watched by abortion rights proponents and opponents alike. It also wasn’t exactly a fair fight: One conservative group sent out text messages on Monday, the day of the vote, warning, “Women in KS are losing their choice on reproductive rights. Voting YES on the Amendment will give women a choice. Vote YES to protect women’s health.”
Voting “yes” on the Amendment was actually a vote against abortion rights. Abortion opponents, though, were clearly worried enough that Kansas voters cared about women’s rights, and so they resorted to playing dirty.
They still lost, which makes this victory even sweeter.
Still, this win is a complicated one. It’s tempting to look at the outcome of this election and draw sweeping conclusions about America’s appetite for – or rejection of – abortion restrictions. The truth is, Americans overwhelmingly did not want to see Roe v. Wade overturned and are generally pro-choice, but when you drill down, people have all kinds of opinions on how, whether and when abortion should be regulated – whether it should be legal in cases of rape or incest; whether it should be legal if a woman is too poor to support a child; whether it should be legal after the first trimester.
These are all the wrong questions. Fundamental rights – and it doesn’t get more fundamental than sovereignty over one’s own body – should not be up for a vote, even if the righteous side is likely to win.
This is a foundational principle in the United States: That while voters should be able to pick their president and their representatives in Congress and at the state level, and have the power to vote on various state-level laws, our Constitution protects the rights of minority and other historically mistreated groups as well. No one should see their basic rights subject to the tyranny of the majority.
And yet that is the position that women and others who can get pregnant are now in. It’s the position that LGBTQ folks are in as well, as they watch their rights head toward the conservative chopping block: A majority of Republicans in the House voted against a bill that protects same-sex and interracial marriage rights. The legislation was passed as a response to fears that the conservative majority on the Supreme Court could take aim at same-sex marriage in the future – 47 Republicans voted with the Democrats in favor of the bill, while more than 150 voted against. Its fate in the Senate depends on whether 10 Republicans will join with the Democratic majority to support it there.
The right to marry who you love, the right to decide whether and when to have children – there are few decisions more fundamental to one’s life than these. Even though same-sex marriage and abortion rights are broadly supported by the American public, it simply should not be up to that public to decide which groups are granted legal protections and the basic dignity of fair and equal treatment.
In 1965, the country was split on the question of whether interracial marriage should be outlawed, and like with abortion and same-sex marriage, there was a significant regional divide: nearly three-quarters of Southern whites supported anti-miscegenation laws, while a minority of non-Southern whites said the same. That same year, a majority of Southern whites also said that President Lyndon B. Johnson’s administration was moving too fast on racial integration. In response first to the push to end slavery and then to end racial segregation, these same Southern whites and their political representatives took up the mantle of “states’ rights” – the ability of individual states to make their own laws, which would in turn let them enslave other human beings, or treat Black people as second-class citizens.
Then, as now, questions of fundamental rights and human dignity should not have been left up to the whims of voters or even state legislators. The Supreme Court said as much in its decisions ending racial segregation, anti-miscegenation laws, bans on abortion and contraception and laws restricting same-sex marriage. Unfortunately, with its more recent decision in Dobbs, the Court didn’t just end the right to abortion – it ended the era of protecting fundamental rights, no matter which way the political winds were blowing.
The same states’ rights ideology that conservatives have long used to justify slavery and segregation now shapes women’s rights in the United States. Whether you are allowed to end a pregnancy or forced under threat of law to continue it against your will depends on where you live. The vote in Kansas reflects this same view: That the question of whether or not women have basic rights to our own internal organs – whether, as Irish writer Sally Rooney eloquently put it, women get to decide what happens to our own bodies or whether we are “granted fewer rights than a corpse” – should hinge on whether you can convince a majority of people in your state to agree.
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Democracy is a powerful tool, and frankly the US should have a lot more of it. But democracy without proper safeguards for minority groups and those long mistreated can be profoundly unjust.
That’s where American women are today. The Kansas vote is a tremendous relief, and it should curb an overly-aggressive anti-abortion movement. But the fact that a vote happened at all is a sign of our misogynist decline.
