Kentucky Abortion Laws: Who's In Control?

Abortion laws in Kentucky have been the subject of much debate and legal back-and-forth in recent years. The state's abortion laws have been subject to numerous challenges and changes, with the Kentucky Supreme Court playing a pivotal role in shaping the legal landscape surrounding abortion in the state. The court's rulings have had a significant impact on the accessibility of abortion services for Kentuckians, with the court's decisions often determining whether abortion services can be provided in the state.

Kentucky's trigger law, HB 148

Kentucky's trigger law was passed in 2019 by then-Governor Matt Bevin after Republicans gained control of the General Assembly in 2016. The law went into effect following the Dobbs v. Jackson Women's Health Organization overruling of Roe v. Wade. Kentucky is one of about a dozen states with trigger laws in place in the event that the U.S. Supreme Court overturns its 1973 landmark decision, which established abortion as a constitutional right.

On June 30, 2022, Jefferson County Circuit Judge Mitch Perry issued a temporary restraining order blocking enforcement of the state's abortion ban pending further hearings to determine if the ban violates the Kentucky Constitution. This order temporarily allowed both of Kentucky's elective abortion providers, located in Louisville, to resume elective abortions. Kentucky's trigger law banning abortions was reinstated on August 1, 2022.

The number of abortion clinics in Kentucky has declined over time, with eleven abortion clinics in 1982, nine in 1992, two in 2002, and one in 2017. In April 2022, House Bill 3 was passed by the predominantly Republican legislature, overturning a veto by Democratic Governor Andy Beshear. The bill banned all abortions in the state after 15 weeks of pregnancy and introduced new regulations and restrictions. As a result, the two abortion clinics operating in Kentucky had to shut down, making abortion de facto illegal in the state.

Kentucky's Supreme Court ruling

Kentucky's Supreme Court ruled in February 2023 that abortion providers lacked "third-party standing" to challenge the state's near-total abortion ban on behalf of their patients. The court's decision focused on narrow legal issues and did not address larger constitutional questions about whether access to abortion should be legal in the state. The justices sent the case back to a circuit court in Louisville.

The Supreme Court's ruling stated that Planned Parenthood and EMW Women's Surgical Center in Louisville did not have the legal standing to challenge the trigger law and six-week abortion ban. The court determined that these abortion providers are prohibited from offering abortions under the current laws and argued that the bans violate their patients' rights under the Kentucky Constitution. However, the Supreme Court ruled that the providers could not assert the constitutional rights of their patients.

The court acknowledged the polarizing nature of the abortion issue and emphasised the importance of honouring the separation of powers. The ruling left open the possibility for a patient to directly challenge the constitutionality of the abortion bans. The broader lawsuit, filed by two Louisville abortion providers, will be considered by the Jefferson Circuit Court, which can weigh the "first-party constitutional claims" of the abortion providers.

The Kentucky Supreme Court's ruling has been criticised by abortion rights groups, who argue that it took away health care providers' ability to defend the rights of their patients. They have indicated that the legal fight is far from over and plan to team up with pregnant women interested in challenging the abortion bans to help restore access to abortion procedures in the state.

Kentucky's abortion ban

Kentucky has had laws concerning abortion since 1900, including therapeutic exceptions. In 1998, the state passed legislation requiring clinics to obtain a license to perform abortions.

By the early 2010s, members of the Kentucky Legislature attempted to ban abortion in almost all cases. In 2019, the state legislature passed a law that prohibited abortions after week 6. A bill passed in April 2022 lowered the threshold to 15 weeks, the second most restrictive limit in the US, and introduced regulations that made abortion illegal until it was blocked in federal court.

Kentucky's trigger law, HB 148, prohibits abortion except when necessary to prevent possible death or risk of permanent injury to the pregnant woman. On June 30, 2022, a temporary restraining order was issued, blocking enforcement of the state's abortion ban pending further hearings to determine if the ban violates the Kentucky Constitution. This order temporarily allowed both of Kentucky's elective abortion providers, both located in Louisville, to resume elective abortions. Kentucky's trigger law banning abortions was reinstated on August 1, 2022.

In November 2022, voters defeated a ballot question that would have amended the state constitution to clarify that the constitution does not protect abortion rights.

In December 2023, the ACLU filed a class-action lawsuit challenging the state's near-total abortion ban on behalf of a Kentucky woman, stating that it violated her right to privacy and self-determination under the state constitution.

Ballot measure to amend the state constitution

In November 2022, Kentucky voters rejected a ballot measure that would have amended the state constitution to clarify that the constitution does not protect abortion rights. The ballot measure, known as Kentucky Constitutional Amendment 2 or Amendment 2, sought to add a new section to the state constitution's bill of rights, stating that "nothing in this Constitution shall be construed to secure or protect a right to abortion or require the funding of abortion".

The amendment was supported by the Yes For Life campaign, which praised the US Supreme Court's ruling in Dobbs v. Jackson Women's Health Organization, which held that the US Constitution does not confer a right to abortion. The campaign argued that amending the Kentucky Constitution would ensure that there is no right to abortion or funding for abortions in the state.

On the other hand, the Protect Kentucky Access campaign opposed the amendment, stating that deciding whether or not to have an abortion is a medical decision that should be made between patients and their healthcare providers, not by the government alone. They argued that the amendment would put tens of thousands of Kentuckians' access to safe and legal abortion at risk and insert the government into individual, personal healthcare decisions.

Despite the Kentucky Legislature's efforts to restrict abortion access, Kentucky voters rejected the ballot measure, handing a victory to abortion-rights supporters. The amendment's defeat means that the possibility remains open that abortion could be declared a state right by the court.

ACLU and Planned Parenthood's response

The American Civil Liberties Union (ACLU) and Planned Parenthood have been vocal in their opposition to Kentucky's abortion laws, which they argue violate the state's constitutional rights to privacy, bodily autonomy, and self-determination. They have filed lawsuits, released statements, and provided resources for individuals seeking abortions in the state.

In December 2023, the ACLU filed a class-action lawsuit challenging Kentucky's near-total abortion ban on behalf of a Kentucky woman, Jane Doe, who was unable to obtain an abortion in the state. The ACLU argued that the ban violates the right to privacy and self-determination and that patients themselves must assert their constitutional rights. The ACLU has encouraged other pregnant Kentuckians seeking abortions to join the case.

In their response to Kentucky's abortion laws, Planned Parenthood and the ACLU have provided resources and support for individuals seeking abortions in the state. They have committed to helping Kentuckians obtain the care they need, including helping patients find care out of state. They have directed individuals to websites such as abortionfinder.org and abortionfunds.org and provided a phone number (1-800-230-7526) to connect with patient navigators.

Planned Parenthood and the ACLU have expressed disappointment in the Kentucky Supreme Court's failure to protect the health and safety of people in the state by refusing to block the abortion bans. They have vowed to continue fighting for bodily autonomy and reproductive freedom in Kentucky. Planned Parenthood CEO Alexis McGill Johnson stated, "We will not allow Kentucky to be the first state in the country without a single abortion provider."

Both organizations have challenged the constitutionality of Kentucky's abortion laws and argued that they impose medically unnecessary requirements on abortion providers. They have also highlighted the impact of these laws on marginalized communities, particularly Black and Brown individuals.

The ACLU and Planned Parenthood's response to Kentucky's abortion laws has been characterized by legal challenges, advocacy, and a commitment to helping individuals access abortion services, despite the restrictive laws in place. They continue to fight for the protection and expansion of reproductive rights in the state.

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