Who will face punishment when abortions are banned, and how?
Should Kansas ban abortion, politicians in Topeka will have some hefty policy decisions to make.
“Banning abortion” sounds simple, but realistically that involves choices about penalties, enforcement, and money.
If Roe v. Wade is overturned and voters vote “yes” on the abortion amendment on the Aug. 2 ballot, the Kansas Legislature can then pass an abortion ban similar to House Bill 2746 this year that outlaws abortion, even in cases of rape, incest, or a woman’s life or health.
“Banning abortion” won’t eliminate abortion in Kansas.
Women, especially wealthy and connected white women, had abortions before Roe — often secretively and/or unsafely.
That may be reality again in Kansas in a post-Roe, “yes” vote world.
Let’s imagine that abortion is illegal in Kansas.
You know a woman who had an abortion here and the medical providers who performed it. You want to report their crime.
Other states are ahead of Kansas in specifying logistics of abortion bans and can illuminate the choices that Kansas politicians will face in this scenario.
Penalties
State abortion bans that trigger if Roe falls specify crimes and penalties. Under many, abortion becomes a first or second degree felony.
Louisiana lawmakers recently attempted to classify abortion as murder.
In 2021, a Texas lawmaker introduced legislation to make abortion a death penalty offense, and some Texas Republicans campaigned on that issue in this year’s primaries.
Some states specify penalties only for those who perform, assist, or advise women to have abortions.
Others also specify penalties for women getting abortions. Penalties vary, including fines and prison up to life sentences.
Enforcement
Local police and locally elected district attorneys enforce most criminal law, so that’s probably who you’ll call to report abortions.
However, many prosecutors nationwide are saying they will exercise prosecutorial discretion to not prosecute abortion should state laws change.
Conservatives in some states are preempting local control here, and proposing bills to centralize abortion reporting to state agencies and allow state government to override county prosecutors.
Financing
Local property and sales taxes primarily fund law enforcement and courts.
The Kansas Judicial Council reports that average trial costs in Kansas can run five or six figures, depending on the charge.
We cannot reliably predict prosecution frequency, enforcement costs, or burden on law enforcement.
But we can confidently predict that local Kansas taxpayers will shoulder costs for investigating and prosecuting abortion locally, unless state lawmakers provide additional statewide taxpayer funding.
Travel bans
Conservatives in some states, including Missouri, have introduced “abortion travel bans” that criminalize either women leaving their states to have abortions or helping women to do so.
These bills are constitutionally questionable, but have growing support from conservatives.
Abortion will likely remain legal in Colorado, so Kansas lawmakers might regulate Kansas women traveling there for abortions.
Businesses
Some American businesses—including Microsoft, Apple, Citigroup, Amazon, and Starbucks—have announced that they will financially assist employees to cross state lines for abortions.
Conservative lawmakers in various states have responded that they will pursue punitive tax measures against any such companies operating in their states.
Would Kansas, too?
Banning abortion isn’t simple.
Should Roe fall and the August abortion amendment pass, Kansas politicians must make controversial decisions about regulations, local control, and money if they criminalize abortion.
Get ready for this expanded culture war front to dominate attention at the Capitol.
Patrick R. Miller is an Associate Professor of Political Science at the University of Kansas
