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Fetal Heartbeat: The Great Anti-Choice Divider In Kansas

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March 7, 2014

On March 26th, 2013, The House Federal and State Affairs Committee opened at 8 a.m. the hearing on HB 2324—a bill summarized by the meeting minutes as “prohibiting an abortion of an unborn human individual with a detectable fetal heartbeat.” The hearing closed that day and now having been heard successfully in committee almost a year ago, the bill awaits to see if it will be introduced to the floor of the legislature for a vote, a vote imbedded in the divisionary politics and varying allegiances at play within the “pro-life”/anti-choice legislators, lobbyists, and activists in the capitol.

There are multitude of anti-choice organizations in Kansas (and even more groups that actively work for anti-choice causes) but the five main anti-choice organizations in Kansas are “Kansans for Life” (KFL); “Kansas Coalition for Life” (KCFL); Operation Rescue (OR); “Right of Life of Kansas, Inc. (RTLK); and the “Kansas Republican Coalition for Life” (KRCL). Often the media outside the state seems to portray the Kansas anti-choice movement as being wholly united in their efforts to eliminate access to choice, not only within the state, but also in the country. This sentiment seems particularly emphasized considering the fact that Governor Brownback stated when he was campaigning that, “if a pro-life bill got to [his] desk, [he] will sign it.” Last year he did sign a “sweeping abortion omnibus bill.” But, in fact, the anti-choice movement is not as united as it may seem in Kansas. Some are concerned that disagreements over fetal heartbeat legislation may produce a division marking some as “moderates” and extremists within the anti-choice movement. But this isn’t a mere ideological divide—it’s a divide that deeply implicates the power in Topeka.

Theses ”moderates” of the anti-choice movement, or those opposed to heartbeat legislation, include Kansans for Life, the largest anti-choice organization in Kansas. Kansans for Life is one of Governor Brownback’s strongest allies—they’re deeply connected both on policy and economic levels, with Brownback’s former chief of staff providing thousands of dollars to Kansans for Life in the summer of 2012. KFL is also closely allied with the Kansas Conference of Catholic Bishops, known as the Kansas Catholic Conference or KCC. KCC’s primary interest is actually anti-gay and religious freedom legislation, but they strongly support anti-abortion bills as well, taking their cues on anti-choice legislation and action from KFL. Kansans for Life is the one of the biggest anti-choice power players in the state, and is very much opposed to fetal heartbeat legislation; they’ve dedicated a whole section on their website to explaining their reasoning for not fetal heartbeat legislation. Their explanation is basically that they believe the political climate at the moment to be unfriendly to passing fetal heartbeat legislation, both in public opinion and in the way the Kansas Supreme Court is stacked. This division in Kansas anti-choice activism was corroborated by Rep. Pete DeGraaf one of the sponsors of the bill (and the man of “spare tire” infamy) in his submitted testimony for the hearing on HB 2324: “there are pro-life organizations that are against Heartbeat because of possible legal challenges.”

However, DeGraaf disagrees with this reasoning—as do the Kansas Coalition for Life and Operation Rescue, the two pro-life organizations most deeply involved in the campaign for heartbeat legislation in Kansas. An anonymous source within the capitol stated that KFL has in effect controlled the anti-abortion agenda in Topeka: “Because of the ascendance of conservatives in the House, Senate and Governor’s office in the last 4 years, they’ve been able to pass every bill on their wish list, which also happens to mean every bill that’s not blatantly unconstitutional.”

KCFL and OR have stated however that they believe that the best way to stop access to abortions in Kansas is not an incremental strategy, but one that strikes down nearly all access to abortion, like the heartbeat bill. Heartbeat would make abortions illegal for many women, especially those with irregular periods, before they even know they’re pregnant. It’s also highly unconstitutional.

“It clearly violates women’s constitutional rights by banning abortion as early as six weeks,” said Elise Higgins from Planned Parenthood of Kansas and Mid- Missouri. “In Roe v. Wade, the US Supreme Court recognized that the US Constitution protects a woman’s liberty, including her decision to have an abortion, and that therefore, a state may not ban abortion prior to viability. In the 40 years following that landmark ruling, in decisions including Casey vs. Planned Parenthood of Southeastern Pennsylvania, the Supreme Court has never wavered from this principle. That is why there’s no question that this bill is unconstitutional.”

This hasn’t stopped OR and KCFL to stop pushing for this kind of legislation, nor to be upset that KFL has been trying to stall their efforts for bills like heartbeat. DeGraaf has “submitted written testimony that said more legislators would have co-sponsored the bill but ‘expressed concerns for possible retribution’ from a pro-life group in the state. He did not name the group.” Though only speculation, it has been understood that DeGraaf is likely referring to KFL.  Supporters of fetal heartbeat have a great deal of frustration also because, unlike KFL, they believe that this legislation wouldn’t get struck down in court. KCFL and OR have long maintained that Heartbeat legislation is specifically written to appeal to Justice Kennedy on the SCOTUS (mentioned in the previously linked Huff Post article). As an anonymous source said, “they see it as the unique and essential tool for overturning Roe.”

Holly Weatherford, from the Kansas ACLU also believes that a heartbeat bill would not survive the current legal system. “The pro-life movement doesn’t have confidence in our Kansas supreme court,” says Weatherford. “they would want to see the make-up of the Supreme Court change.”

This change would be moving away from the current Kansas Supreme Court Model and into a model more like the federal one—which is an issue currently very topical within the legislature.

“This session is expected to focus heavily on the role of the Supreme Court, not only because of battles over education, but also because the anti-abortion movement wants to see the last barrier to their agenda removed,” says Higgins. “Any number of vote trades are possible in order for Speaker Merrick to reach the constitutionally required 2/3 of the House of Representatives necessary for a change in the Court’s makeup, and one such vote trade could involve early abortion ban bill.”

Though a vote trade is only speculation, it’s a factor to be considered while the fetal heartbeat bill’s fate waits to be seen, particularly with the convoluted politics within the anti-choice movement in Kansas. It’d also put Governor Brownback in a potentially awkward position—he’s stated he’ll sign any and all pro-life legislation, but his main political supporters are against fetal heartbeat. In addition, the bill is genuinely viewed as too extreme by many, even in Kansas. Brownback has been caught distancing himself from the bill a number of times.

The bill still waits to see if it will be heard by a committee.

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