FRANKFORT, Ky. — A week after Kentucky voters rejected an anti-abortion ballot measure, the state’s Supreme Court on Tuesday weighed the constitutionality of a statewide ban approved by the Legislature in a case that seems destined to become a defining moment for abortion rights in the state.
An attorney defending the abortion ban urged the court “not to create the Kentucky version of Roe v. Wade.” A lawyer for two abortion clinics challenging the ban countered that the state's voters “declined to remove protections for abortion from our constitution.”
The case is the first legal test since voters in Kentucky signaled their support for abortion rights in last week's midterm elections, rejecting a ballot measure that would have denied abortion rights in the state's constitution.
The court hearing at the Kentucky Capitol was closed to the public amid heightened security. Mindful of the ballot's rejection, abortion rights supporters gathered near the courtroom and chanted: “No means no.”
"It's all about education and access to information," said Myriad Norris, administrator for the group Kentucky for Reproductive Freedom and founder of Pride & Protest Kentucky.
Abortion rights supporters are asking the state's highest court to temporarily block the abortion ban while the case is litigated.
"There are very real harms happening right now," ACLU of Kentucky Staff Attorney Heather Gatnarek said.
The defeat of the anti-abortion amendment was raised within minutes of the hearing. Deputy Chief Justice Lisabeth T. Hughes called such ballot measures “the purest form of democracy” and pressed the attorney defending the abortion ban on why the vote shouldn't have an impact.
Solicitor General Matthew Kuhn, representing the state attorney general's office, said the measure's defeat did not change existing constitutional language, or the absence of any “historical evidence” to suggest that the state constitution protects abortion.
“When it comes to abortion, our constitution here in Kentucky is simply silent," Kuhn told the justices during the more than hourlong hearing. "The closeness of the vote, if you could read anything into it, it's that it's a divisive issue -- which we think reemphasizes the point that the Court should leave this to our General Assembly."
That means the issue of abortion access is left to the state legislature to decide, he said.
Gatnarek said the ban has forced women “to remain pregnant against their will.” She said the right to privacy has consistently been recognized as a key part of the guarantees of liberty under the state constitution.
“Our constitutional protections can be interpreted more broadly than those allowed for by the federal constitution, and that is specifically so with the right to privacy,” she said.
Justices also inquired about the ACLU's beliefs on fetal viability, asking at what point self determination of a woman would be outweighed by the interests of the child.
While Gatnarek said a clear line exists, an exact timeline wasn't specified.
BACKGROUND
The Kentucky justices reviewed a challenge to the state's trigger law that banned nearly all abortions, taking effect after Roe v. Wade was overturned in June by the U.S. Supreme Court.
Approved in 2019, the law carved out narrow exceptions to save a pregnant woman’s life or to prevent disabling injury. There are no exceptions for rape or incest victims.
What impact, if any, the anti-abortion measure's defeat will have on the Kentucky law was a matter for intense debate in the days leading up to the hearing.
Gov. Andy Beshear, a Democrat, expressed hope that the state's highest court "will listen to the will of the people and know that the people have rejected extremism and rule accordingly.”
Republican Attorney General Daniel Cameron, whose office is defending the statewide ban in court, continued to claim there's “no right to abortion hidden in Kentucky's Constitution.”
He said abortion policy should be left up to the state's Legislature, where GOP majorities have passed a series of anti-abortion measures in recent years. Cameron is among several Republicans vying to challenge Beshear's reelection bid in 2023.
In Kentucky, the abortion case wound its way through lower courts before reaching the Supreme Court as the referendum battle played out.
In July, a Louisville judge said the new, post-Roe abortion bans likely violate “the rights to privacy and self-determination” protected by the Kentucky Constitution.
Judge Mitch Perry said it was not the court’s role to determine whether the state constitution contains the right to abortion, but whether the state’s restrictive laws violate constitutionally guaranteed freedoms.
The near-total abortion ban was reinstated on an appeal to the intermediate state Court of Appeals. The state Supreme Court later opted to keep the abortion ban in place while it reviews the case, leaving abortions on hold in Kentucky and forcing women who can afford the procedure to look elsewhere.
A separate six-week ban that Kentucky lawmakers approved also is being challenged by the two remaining abortion clinics in the Bluegrass State — both in Louisville, the state’s largest city.
Both the ACLU of Kentucky and AG Cameron's Office confirmed regardless of how the Supreme Court or Jefferson Circuit Court rules in the case of these two bans, a separate 15-week ban (Kentucky House Bill 3) reinstated by a U.S. District Judge in July 2022 will remain in effect either way.
A year ago, Kentucky lawmakers added the anti-abortion amendment to the 2022 general election slate as abortion foes hoped to cut off a legal path to restoring abortion rights. The measure would have declared the state constitution didn't protect the right to an abortion.
Now that the amendment has been defeated, the stakes are enormous.
“This case is almost certainly the only realistic path to protecting abortion rights in Kentucky for the foreseeable future,” University of Louisville law professor Samuel Marcosson said ahead of the hearing.
During the Kentucky Supreme Court hearing, Kuhn opened the door for expanded protections within the current laws -- saying a bill with exceptions for rape and incest will be pre-filed by lawmakers sometime in the future, but didn't give a timeline.
"I think the General Assembly is going to address this issue, and I hope the Court gives them the time to weigh in on this," he said.
It's unclear how long justices could take to rule on the temporary injunction request.
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