The Kentucky Supreme Court has issued a ruling that keeps the state’s two near-total bans on abortion in place and remanded the case back to the trial court for constitutional review.
Jefferson County Circuit Court Judge Mitch Perry last year blocked enforcement of the state’s “trigger law,” which bans abortion in nearly all cases, and a separate six-week ban. The state Court of Appeals reversed that ruling, allowing the abortion bans to go into effect last August.
And now, in a 150-page opinion, Supreme Court justices have upheld that decision.
The majority opinion Thursday states that Kentucky's two abortion providers lack the constitutional standing to challenge the laws on their patients' behalf, but that they do have standing to challenge the trigger ban on their own.
But justices left the door open to weigh in on the issue further, saying the ruling “does not in any way determine whether the Kentucky Constitution protects or does not protect the right to receive an abortion.”
The opinion goes on to say that nothing in the opinion “shall be construed to prevent an appropriate party from filing suit at a later date.”
Advocates, politicians respond
Planned Parenthood Federation of America and the ACLU issued a joint statement after the ruling, saying justices “failed to protect the health and safety of nearly a million people” by refusing to block the laws.
“Even after Kentuckians overwhelmingly voted against an anti-abortion ballot measure, abortion remains banned in the state. We are extremely disappointed in today’s decision, but we will never give up the fight to restore bodily autonomy and reproductive freedom in Kentucky. This fight is not over,” the groups stated.
The high court heard arguments on the case in mid-November, shortly after voters rejected an amendment that would have added anti-abortion language to the state constitution.
During that hearing, providers argued the bans violate patients' right to privacy under the state constitution.
ACLU attorney Heather Gatnarek argued the bans were interfering with patients and doctors' ability to make medical decisions.
“Doctors should not be placed into a situation where they are left to watch their patient deteriorate before they meet one of these very narrow exceptions," Gatnarek said.
Kentucky Attorney General Daniel Cameron has argued there is no protection for abortion under the state constitution, which Kentucky Solicitor General Matt Kuhn reiterated to the justices during the hearing.
“It is not pro-choice or pro-life, so the question must be left to the General Assembly,” Kuhn said. “That Kentuckian who wants abortion rights should pick up the phone and call their assembly member.”
In a statement, Cameron called the opinion “a significant victory,” and vowed to continue to defend the laws.
“Since the U.S. Supreme Court overruled Roe v. Wade last June, we have vigorously defended Kentucky’s Human Life Protection Act and Heartbeat Law,” it reads. “We are very pleased that Kentucky’s high court has allowed these laws to remain in effect while the case proceeds in circuit court.”
Corey Koellner, executive director at Right to Life of Louisville, said the group “celebrate that lives continue to be saved while the Commonwealth’s abortion ban remains in effect.”
“We are confident that when Kentucky’s first citizens drafted the state constitution, they did not intend to recognize or affirm any right to abort unborn children.”
Following the decision during his weekly Team Kentucky briefing, Democratic Gov. Andy Beshear called the abortion bans “draconian.”
"What this means is people victimized through no fault of their own, or going through the worst outcome that prospective parents could have, have no options,” he said. “I think it's wrong, I think there needs to be changes made to it.”
Background
Kentucky became one of the first states to block most abortions following the United States Supreme Court decision to overturn Roe v. Wade.The 2019 trigger ban makes it a class D felony punishable by up to five years in prison for anyone performing an abortion through procedure or medication.
The law includes a narrow exception allowing an abortion if it is necessary to prevent death or “serious, permanent impairment of a life-sustaining organ” of the pregnant person.
The patient would not face a criminal charge for an abortion under Kentucky’s current regulatory scheme. But some Republican lawmakers have proposed changing that.
Republican Rep. Emily Callaway, of Louisville, recently introduced a bill that would allow people who have abortions deemed illegal under state law to be charged with homicide.
Unlike a ban in Indiana, which is blocked but also before the state Supreme Court, Kentucky’s law has no exceptions for rape, incest or unviable pregnancies.
Ryland Barton and Divya Karthikeyan contributed to this story, which has been updated.
