The quiet way Republicans are trying to undo abortion rights again — starting in Kansas
Four years after the Dobbs decision, abortion battles have largely taken a backseat in national news to other policy fights this cycle. Leaders in the anti-abortion movement say they’re disillusioned with President Donald Trump’s unwillingness to push for further restrictions. The federal battle over access to abortion medication seems to be settled — for now. Public awareness of that fight is limited, and even at the state level, a couple years have passed since the high-pitched but successful state-level efforts to protect abortion access in red states. Yet a little-known battle has been playing out in Kansas, where a ballot measure to change the way state supreme court justices are selected serves as a reminder that these fights over abortion are still active, even if they take the form of creative procedural and administrative efforts. If it succeeds, opponents say, it would open the floodgates for similar efforts in other states to politicize the remaining independent state courts (13 other states use a method similar to Kansas) and provide a roadmap to undoing abortion protections in other states that have safeguarded them. On Tuesday, Kansans are deciding whether to change the way judges on the state’s highest court are selected. Up until now, judges were selected through a nonpartisan merit-based system: When a spot opens on the bench, a nine-member commission submits a list to the governor, who then selects a replacement. The referendum would replace this system with direct, partisan elections of judges, like any other politician. Proponents say it’s a democratic move, a way to better express the will of voters over “unelected” bureaucrats. Yet critics say it’s first and foremost about restricting abortion rights — which both the court and voters have rejected. How Kansas became an abortion rights flashpoint In 2019, the state supreme court recognized the right to abortion in the state constitution; three years later, after Dobbs, voters rejected a Republican-championed proposal to overturn that ruling, choosing to preserve abortion rights by a 59-41 margin in a deeply red state. It was after that failed vote in 2022 that then-state attorney general Republican candidate Kris Kobach outlined a new strategy for undoing these protections: changing the way the supreme court is selected, electing anti-abortion candidates, and “slowly and quietly” overturning the 2019 decision and 2022 vote. “If you look at the various proposals, one of the proposals that is crystal clear is allowing people to popularly elect justices to the supreme court, which is the most common system among all of the states in the country,” Kobach said in 2022. He’s a bit more careful talking about this in 2026: “There is a real desire to bring back some accountability to the judiciary,” he told the New York Times this week. “It’s not just about abortion.” The Tuesday results would have huge ramifications, critics said, given that non-elected state courts have been a final bulwark against Republican supermajorities and governors in red states. Kansas has been an island for abortion access for women in the South and central US since the Dobbs decision. The victory in 2022 also inspired abortion rights advocates to try to use ballot measures to enshrine these protections in about a dozen other states, which successfully overturned abortion bans in Missouri and Ohio. State courts in Utah and Wyoming, meanwhile, blocked bans. The next frontier in the abortion wars These independent checks on power have been under attack for years, Michael Milov-Cordoba, a court expert and counsel in the Brennan Center for Justice’s judiciary program, told me. “State legislators across the country are increasingly trying to undermine those courts…That retaliation takes a few different forms, but changing how judges are selected is top of the list,” Milov-Cordoba said. “And what we’ve seen is that in many states where courts stand up for abortion rights and strike down abortion restrictions, efforts to change state judiciaries have followed.” He noted the complete reworking of the Utah supreme court in the last year, including by expanding and packing it. Similar retooling of the state supreme court happened in Iowa in 2022. Montana is likely the next battleground, where Republican legislators are exploring various avenues to strip or limit the state supreme court’s powers. That in turn has led the ACLU to get involved to boost a constitutional amendment this year that would preserve the nonpartisan status of judicial elections. And in recent years, state supreme court elections have been inundated with spending and attention from both in- and out-of-state backers. Last year’s Wisconsin judicial election, for example, became the most expensive race of its kind in US history, with more than $100 million spent — just two years after a contest for a different seat on the state supreme court had set its own record at more than $50 million spent. “If these courts become partisan, then they will be just like any other election fight — subject to being bought and sold by billionaire political funders,” Deirdre Schifeling, the chief political and advocacy officer at the ACLU, told me. “They become a race to the bottom… and [Republicans] are finding backdoor ways to seize power to push their ideological agenda.” Already, Kansas has seen heavy spending: more than $12 million have been spent from both sides, including about $5 million from the ACLU, Schifeling told me. ”Everyone’s focused on the Michigan Senate race, other kind of big-ticket, sexy elections,” Schifeling said. “Well, this is just as important and much more under the radar. Without a balanced court, we are going to lose rights and liberties across the board in a state like Kansas.”