One week after Kentucky voters rejected an anti-abortion ballot measure, the state Supreme Court weighed whether a statewide ban on abortion previously passed by lawmakers can remain in effect.
The court is weighing a lawsuit against two of Kentucky’s 2019 abortion laws, one being a so-called trigger law, also known as the Human Life Protection Act, which bans nearly all abortions in the Bluegrass State except for narrow exceptions such as saving the life of the mother. A separate law known as the heartbeat law, or a six-week ban on abortion, is also being challenged as part of the litigation brought by the American Civil Liberties Union.
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The case marks the first time courts will consider Kentucky’s restrictive abortion laws since voters rejected a ballot measure that would have denied abortion rights in the state’s constitution, a signal that some voters aren’t keen on a near-total abortion. If the state Supreme Court sides with abortion providers who dispute the law, clinics could begin providing abortion up to 15 weeks of pregnancy.
An attorney for Republican Attorney General Daniel Cameron‘s office defended the state’s laws and called on the justices “not to create the Kentucky version of Roe v. Wade.” Attorneys for the ACLU, which sued on behalf of clinics and providers, underscored that voters “declined to remove protections for abortion from our constitution.”
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var _bp = _bp||[]; _bp.push({ "div": "Brid_68546247", "obj": {"id":"27789","width":"16","height":"9","video":"1181585"} }); ","_id":"00000184-7d1a-d5ff-a7af-7ddfe5be0000","_type":"2f5a8339-a89a-3738-9cd2-3ddf0c8da574"}”>Video Embed“It strikes me that a ballot initiative is the purest form of democracy,” said Deputy Chief Justice Lisabeth Hughes, an appointee of former Republican Gov. Ernie Fletcher. “It is the people, themselves, speaking.”
One ACLU attorney, Heather Gatnarek, argued the stricter laws violate the privacy rights instilled in the state constitution since 1891. Parties challenging the laws are also asking the state Supreme Court to temporarily block the ban while the case plays out in court.
“It is the role of the Legislature to legislate, but they must do so within the confines of what this court tells them is constitutionally permissible,” she said.
But Kentucky Solicitor General Matthew Kuhn, defending the state’s abortion laws, said the measure’s defeat does not change the existing constitutional language or the absence of “historical evidence” to suggest the state constitution allows for abortion protections.
“When it comes to abortion, our constitution here in Kentucky is simply silent,” Kuhn told the justices during the Tuesday hearing.
Kentucky Gov. Andy Beshear, a Democrat, is hoping the state high court justices “will listen to the will of the people and know that the people have rejected extremism and rule accordingly,” referring to the rejected ballot proposal.
The ballot amendment was added one year ago to the 2022 general election slate by the Republican-controlled state legislature in an effort to place roadblocks to abortion access in the state.
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If challengers succeed in arguing the state constitution’s language around privacy extends to abortion rights, a position that a lower court has agreed with, then a legal victory for the ACLU could result in blocking both the ban at conception and the six-week ban.
Kentucky’s 15-week abortion ban is being challenged in a separate case and would be unaltered by the outcome of the case being weighed presently by the state Supreme Court.
