This week, Kentucky voters rejected a constitutional amendment that would have helped enshrine abortion restrictions in the state, clearing the way for lawsuits against the bans to proceed.
Amendment 2 would have added this language to the state’s foundational document: “To protect human life, nothing in this Constitution shall be construed to secure or protect a right to abortion or require the funding of abortion.”
It would have given more power to state lawmakers to decide on access and prevented courts from interpreting a right to abortion in the state’s foundational document.
What the outcome means for legal challenges
Kentucky’s near-total abortion bans went into effect following the United States Supreme Court’s reversal of Roe v. Wade in June.
Lawsuits followed, first by Planned Parenthood and the ACLU arguing the restrictions violate the right to privacy under the state constitution. A second lawsuit, filed in October by three Jewish women in Louisville, says the bans violate their religious freedom.
Josh Douglas, a law professor at the University of Kentucky, said the amendment’s failure means constitutional challenges can continue. The state supreme court is expected to hear oral arguments in the case filed by Planned Parenthood and the ACLU on Tuesday.
“I think the big impact is that the case is still alive at the court,” Douglas said. “If the amendment had passed, it would have said that the courts could not recognize the right to abortion under the state constitution, and that's essentially the basis of the plaintiff's arguments in the case.”
He added that state constitutions are often broader and confer more rights than the U.S. Constitution, and that the amendment’s failure “leaves the door open for the state supreme court to recognize the right to abortion under the state constitution.”
It’s not clear how or if the amendment’s failure could impact the case outcome. Kentucky Attorney General Daniel Cameron filed a motion Tuesday essentially asking the court not to let the vote play into its decision.
“While this result is disappointing, it does not change our belief that there is no right to abortion hidden in the Kentucky Constitution and that the regulation of abortion policy is a matter that belongs to our elected representatives in the General Assembly,” he said in a statement.
Amber Duke, interim executive director at ACLU of Kentucky, said Tuesday night the amendment’s failure means advocates can move forward with trying to regain access to abortion in the commonwealth.
“This was a crucial step in order for us to continue our legal fight,” she said. “If this amendment were to have passed, it really would have taken our strongest legal tool in the fight to protect abortion access in the courts. We would have lost that if we lost this vote.”
Groups like the Kentucky Health Justice Network also worried the amendment could have further eroded the support they provide for people seeking abortions, which now means getting people to states with access.
“It gives us a fighting chance, it gives us ground to stand on,” Director Erin Smith said Tuesday night ahead of the vote count. “If we actually defeat Amendment 2 tonight, we know that we can come back this legislative session.”
Stakes high after months without abortion access in Kentucky
National news outlets called the vote early Wednesday, more than 12 hours after the first polls closed in Kentucky. As of Thursday, The New York Times reported 52.4% of the votes were against the amendment, with 47.6% in favor.
It’s the latest development in the tug-of-war that’s been playing out in recent years between abortion access advocates and the state’s Republican-controlled legislature, which has shown it wants to end or severely restrict abortion.
The Kentucky Constitution does not explicitly mention abortion.
The U.S. Supreme Court’s decision to overturn Roe struck down nearly 50 years of federal protection for abortion access, giving states the power to decide on access.
Abortion access in Kentucky has been cut off since August, when the state court of appeals ruled two near-total bans could be enforced as legal challenges to their constitutionality continue. The Kentucky Supreme Court later upheld that decision. The state’s trigger ban outlaws abortions in all but life-threatening cases, and a separate law bans abortions around six weeks.
Attendees at a watch party hosted by Protect Kentucky Access, a coalition that’s campaigned against the amendment, celebrated early Election Night when it appeared their side had won.
“The message from Kentucky is clear. Lawmakers went too far,” said Jackie McGranahan, policy strategist for ACLU of Kentucky. “They tried to take too much, and the power of the people of Kentucky — especially in this room — we stopped them.”
Duke, the group’s interim executive director, said she thinks that Kentuckians already knowing what a ban felt like helped drive turnout.
“People who are pregnant, who don't want to be are either forced to remain pregnant, or they have to flee the commonwealth in order to find care,” she said. “So it wasn't sort of like a theoretical exercise of what would happen. We knew the status quo, and folks knew how high the stakes were.”
