FRANKFORT, Ky. — Kentucky’s Supreme Court on Thursday refused to allow abortions to resume in the state, rejecting a request to halt enforcement of a near-total ban on abortion that has largely been in place since Roe v. Wade was overturned.
The court was weighing challenges to both Kentucky's near-total ban on abortion, known as a "trigger law," and also a heartbeat law that banned abortions after six weeks.
The high court said the plaintiffs, EMW Women's Surgical Center in Louisville and Planned Parenthood, don't have standing for a majority of their claims and sent the case back to the circuit court to judge part of the trigger law claim.
Read the state Supreme Court's opinion:
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The plaintiffs alleged the anti-abortion laws violated freedoms guaranteed to their patients under the Kentucky constitution. But a majority of the justices said third-party standing no longer applies after the national Dobbs v. Jackson Women's Health case.
"The Dobbs decision changed all that," Sam Marcosson, a law professor at the University of Louisville, said. "Third party standing is no longer -- as it had been under the Supreme Court's precedents before-- no longer a basis to bring a challenge under an abortion statute."
The court weighed in on the issue after Kentucky voters last year rejected a ballot measure that would have denied any constitutional protections for abortion.
Marcosson says the case is still alive in circuit court, but only on a challenge that trigger laws are unconstitutional and the law makes the clinics a possible victim to criminal prosecution.
Under the current law, there is no criminal penalty for a woman seeking an abortion, but it is a class D felony to perform one.
"They can only challenge the trigger law, and they can only challenge it on a very narrow ground, not the really fundamental issue that this lawsuit has been understood to be about, which is whether the Kentucky constitution protects a woman's right to get an abortion," Marcosson said.
The state Supreme Court instructed the plaintiffs to add a woman (or women) currently seeking an abortion to their case, if they wish to raise the issue that abortion should be protected under the Kentucky Constitution.
"One problem they may face with having someone do that is that there is no injunction and the clinics are closed," Marcosson said.
In July, a Louisville judge, Mitch Perry, halted enforcement of the new bans because he found that they likely violated the state constitution’s rights to privacy and self-determination.
He said it wasn’t the court’s role to determine whether the state constitution guarantees the right to abortion, but it is its role to decide whether the new bans violate constitutionally guaranteed freedoms.
Despite Perry's ruling, the state Court of Appeals reinstated enforcement of the bans and the state Supreme Court opted in August to keep them in place while it reviewed the case.
In a statement, Kentucky Attorney General Daniel Cameron said the ruling is a "significant victory" and vowed to continue defending anti-abortion rights legislation.
“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," he said. "We are very pleased that Kentucky’s high court has allowed these laws to remain in effect while the case proceeds in circuit court."
The plaintiffs told WHAS11 on Thursday they cannot comment on future litigation at this time, however, they said in a statement, the court "failed to protect the health and safety of nearly a million people in the state."
"Even after Kentuckians overwhelmingly voted against an anti-abortion ballot measure, abortion remains banned in the state," they said. "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.”
Background
Kentucky’s near-total trigger law ban was passed in 2019 and took effect when the U.S. Supreme Court overturned Roe v. Wade.
It bans abortions except when they're carried out to save the life of the mother or to prevent disabling injury. It does not include exceptions for cases of rape or incest.
Two Louisville abortion clinics challenged the bans: EMW Women's Surgical Center and Planned Parenthood.
Thirteen states have current bans on abortion at all stages of pregnancy, including Wisconsin, where there’s a legal question over which law is in effect but where clinics have shut down.
Bans and tight restrictions are currently on hold because of court action in at least six states.
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