How rejection of Amendment 2 could pave the way for restoration of abortion access in KY
For nine days in late July, abortion was temporarily legal and accessible in Kentucky.
The state’s two outpatient abortion providers, Planned Parenthood and EMW Women’s Surgical Center, filed a lawsuit a month earlier in an effort to overturn the trigger law and a six-week ban, both of which took effect after federal constitutional abortion protections were dropped in late June.
Both laws are still intact today. The trigger law bans abortions in all circumstances except in limited emergencies to preserve a pregnant person’s life. The six-week ban criminalizes abortion after a fetal heartbeat is detected, typically around the sixth week of pregnancy. Together, the pair of laws has nearly rid the state of legal abortions.
But from July 22 to August 1, enforcement of these laws was briefly halted by an injunction handed down by Jefferson Circuit Judge Mitch Perry. It was the last stretch of time abortion was legal in Kentucky before both bans were reinstated by the Kentucky Court of Appeals, granting a request for emergency relief from Republican Attorney General Daniel Cameron.
Perry’s basis for issuing a temporary injunction may foreshadow what’s to come for abortion access in Kentucky, now that voters have rejected a proposal to revise the constitution to prohibit a protected right to abortion. That rejection leaves the door open for the Kentucky Supreme Court, who will hear the case November 15, to interpret abortion as a constitutionally-protected right in Kentucky.
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By Perry’s judgment, there is merit to the lawsuit’s central claim — by denying an individual access to the full spectrum of reproductive health care, which decidedly includes abortion, it infringes on one’s right to privacy and bodily autonomy under the Kentucky Constitution.
“Plaintiffs assert, and this court agrees, that abortion is a form of health care,” Perry wrote. “It is provided by licensed medical professionals in licensed medical facilities, just like many other medical procedures.” Allowing a ban to remain in place, denying the public of this health care is “detrimental to the public interest” and therefore causes irreparable harm, he found.
Similarly, Perry said both bans are likely unconstitutional in vagueness and application. By his initial reading, those laws appear to violate an individual’s right to privacy, equal protection and religious freedom.
The six-week ban, for instance, “will have wide ranging effects on family planning decisions that are traditionally protected from governmental imposition,” Perry wrote. “It not only compromises a woman’s right to self-determination protected in Section 2 of the Kentucky Constitution by taking away the choice to have an abortion in many instances, but also undercut’s a woman’s choice to have children at all.”
As for equal protection, Kentucky’s abortion ban compels the loss of bodily autonomy among only women, not men, which constitutes sex-based discrimination, he said.
“People cannot be legally coerced into giving blood or donating organs. Bone marrow transplants are not compulsory,” he said. “When a person dies, their organs can be utilized only if they consent to being an organ donor.”
The state’s abortion bans “grant less bodily autonomy to women than in any of these other circumstances, or at any other time in the woman’s life. Only in the context of pregnancy is a woman’s bodily autonomy taken away from her,” Perry wrote. “This is a burden that falls directly, and only, on females. It is inescapable, therefore, that these laws discriminate on the basis of sex.”
Though these findings were made by a lower court, it does provide insight into the breadth of interpretation that’s possible for the high court next week. But had Amendment 2 passed and the state constitution were revised, it would have drastically limited this scope, and the premise of the current lawsuit would’ve become invalid.
“The Kentucky Supreme Court case would’ve gone away. That would’ve been the end of the story,” said Josh Douglas, an election and voting rights law professor at the University of Kentucky. “It would’ve answered the question, and there would’ve been no ability for a court to recognize abortion under the state constitution.”
But since Amendment 2 failed and the constitution remains unchanged, high court justices still have the option to interpret the constitution as including protections that extend to abortion access.
“It is now up to the state Supreme Court to determine the scope of abortion rights, if any, under the state constitution,” Douglas said.
This gives Planned Parenthood hope.
“As we move into the case next week, we’re very hopeful for our ability to defend our right to abortion access because of the privacy protections in the constitution,” said Tamarra Wieder, Kentucky state director for Planned Parenthood Alliance Advocates.
With Amendment 2’s defeat, “we can go into this lawsuit knowing that the courts are fair and free and that judges are going to look at the Kentucky constitution without any political bias,” she said.
‘Role of the judiciary’
Republican Attorney General Daniel Cameron’s defense of the constitutional merits of both laws hinges on a fairly simple idea: since the state Constitution does not explicitly mention the word abortion, it clearly does not protect a right to abortion.
“The word ‘abortion’ appears nowhere in any of the 263 provisions that make up Kentucky’s charter,” Cameron, who’s running for governor, wrote in his initial brief on September 19.
Determining the scope of any constitutional protection “depends not on balancing competing policy interests, but on constitution text, history and case law,” he wrote in an October 24 brief. “The legal question at the heart of this case is not a close call. Our Constitution does not mention abortion.”
It’s a refrain he reiterated in another brief filed on Wednesday, a day after Amendment 2 failed. The high court purposely scheduled oral arguments to begin after Election Day, potentially to note the registering of public opinion on abortion before justices weigh in with their judicial review.
“Even if the Court tries to read something into yesterday’s vote, the most that can be said of the close result is that it reiterates why the issue of abortion should be resolved by the General Assembly,” Cameron said. And since the constitution remains unchanged after the vote, “it still says nothing about (abortion),” he said.
In his 20-page ruling in late July, Perry found cracks in this argument, which will be weighed by the high court’s justices beginning next week.
“Despite what some suggest,” Perry wrote on July 22, “the inquiry does not end simply because the word ‘abortion’ is not found in the Kentucky Constitution.”
The state’s founding document “must protect more than just the words explicitly enumerated on the page in order for the purpose behind the words to have effect,” Perry explained. “To hold otherwise ignores the realities of how constitutions, and laws more generally, are written.”
“It is impossible for any legislative or constitutional body to enumerate every possible future scenario and application. Instead, bodies craft broad sentiments, ideas, and rights they value and choose to protect,” the circuit court judge said. “It is then the role of the judiciary to interpret the enumerated words and give effect to the meaning behind them.”
Just because the state Supreme Court is no longer prevented from finding a right to abortion within the constitution doesn’t mean it will. Though the ultimate decision in this case will have vast statewide consequences — either some amount of abortion access will be restored, or the state’s near-total ban will stay in place — there is little indication of where the high court may land.
When the case was transferred in August, justices elected to keep the ban in place until the lawsuit was resolved. Some members noted the significance of their future decision.
“Members of the Judiciary, in fact all human beings, are often called upon to weigh competing interests,” wrote Justice Michelle Keller, who won re-election to the high court on Tuesday. “Rarely, however, are we tasked with weighing interests that are as heavy and as important as those at stake in the case at bar.”
Chief Justice John Minton, who is retiring at the end of his term in January, agreed: “Few modern issues have proven more significant, and more politically contentious, than access to abortion.”
But it’s the role of courts, Minton said, “as neutral, dispassionate arbiters of the law, (to) constitute a final check on the vicissitudes of political fervor.”
This story was originally published November 10, 2022 at 12:36 PM.
