An ‘unworkable’ solution? Why Democrats, abortion policy experts are wary of Kentucky bill
Dr. Jeffrey Goldberg told a legislative committee a story this month that he said was indicative of the current abortion landscape in Kentucky.
A colleague had recently treated a patient with an ectopic pregnancy, meaning the fetus had implanted itself outside the uterus — in this case, in the patient’s cervix. The treatment for the potentially life-threatening pregnancy was a medical or surgical abortion, ideally before the pregnancy ruptures.
But the doctor stalled, Goldberg said.
Not because it was best for the patient — it certainly wasn’t — but because the doctor wasn’t sure if terminating the pregnancy was legal under Kentucky’s current abortion bans.
The bans offer exceptions to save the “life of the mother,” but the exceptions are not clearly defined. The penalties are: a Class D felony for any person who “knowingly” administers a procedure “with the specific intent” of terminating a pregnancy.
“Under the current statute, it was not at all clear to him that he could proceed with properly treating this patient,” Goldberg, a gynecologic oncologist, explained March 12 to a panel of lawmakers on the House Health Services Committee.
Goldberg, who also serves as legislative liaison for the Kentucky chapter of the American College of Obstetricians and Gynecologists, said the patient lived. But she bled profusely, eventually requiring blood transfusions that were “completely avoidable if she’d been able to receive proper treatment,” he said. “That’s just a typical everyday example of how statutes that were thought to be clear by legislators were not at all clear to physicians who are treating these patients on the front lines.”
An amended bill proposed in the final week of the 2025 legislative session by Kentucky Republicans is a start to providing some clarity for doctors, Goldberg argued.
House Bill 90 provides slight but crucial clarification to “statutory restrictions that are, from a medical perspective, very ambiguous,” Goldberg said. For now, exceptions in Kentucky’s trigger law allow doctors to provide abortions if, in their “reasonable medical judgment,” they believe it’s necessary to “prevent the death or substantial risk of death” of a pregnant woman, or to “prevent the serious, permanent impairment of a life-sustaining organ of a pregnant woman.”
These standards are not defined. House Bill 90 tries to offer more clarity, Goldberg said, including by defining what’s considered “reasonable medical judgment.”
But criticism has poured in in recent weeks, including from Democrats, Planned Parenthood and even doctors. They claim the bill, intended to make it easier for doctors, would actually further block them from providing emergency care to pregnant patients who need it.
So which is it?
Kentucky Gov. Andy Beshear, a Democrat, sided with the critics late Tuesday when he vetoed the bill, saying it would put patients “further at risk.”
The bill doesn’t include enough detail about which conditions are considered emergencies, the governor said in his veto message. That, compounded by the bill’s use of non-medical jargon often used by anti-abortion groups, created “more barriers to treatment,” Beshear said.
“Although supporters of House Bill 90 claim it protects pregnant women and clarifies abortion law in Kentucky, it actually does the opposite,” Beshear said. This rationale is in line with Planned Parenthood’s criticism of the bill as “extreme anti-abortion policy.”
In a strongly worded letter, the organization demanded Beshear veto the bill, saying, “This bill does not improve patient safety, provide clarity for medical professionals, or improve patient outcomes.”
On Wednesday morning, Planned Parenthood urged the General Assembly not to override Beshear’s veto. But on Thursday, when they returned for the final days of session, Republicans voted along party lines to override the veto and make House Bill 90 law.
“Despite claims of providing clarity, this bill forces providers to delay care until patients are near death,” even though the state’s ban already allows doctors to intervene only in life-threatening scenarios, Planned Parenthood said.
But three legal scholars interviewed by the Herald-Leader who study state-level abortion policy have more nuanced views.
They don’t read the added language as unequivocally hurting all pregnant women with complications, as Beshear and Planned Parenthood suggest. But they do point to a broader problem in states across the country where similar bans have interfered with medical care: Attempting to clarify medical exceptions for doctors with a law that still carries steep criminal penalties is a losing game.
“I do think it has one or two potential tweaks that, to some extent, clarify the statute in a helpful way,” Maxine Eichner, law professor at the University of North Carolina at Chapel Hill, said of Kentucky’s House Bill 90. “It’s helpful to say ectopic and pregnancies are conditions where action could be taken.”
But, she said, “There’s far more here that’s problematic and moves the dial in the wrong direction when it comes to making sure pregnant women are kept safe. It’s one step forward, two steps back.”
An ‘unworkable’ solution
Kentucky’s bans, in place since 2022, allow doctors to provide abortions if it’s to save the life of a pregnant woman.
But doctors have repeatedly told the Herald-Leader the exception is far too vague and narrow, discounting the range of complications that require a medically necessary abortion but aren’t necessarily life-threatening.
Goldberg told the Herald-Leader in January that if the ban isn’t amended to untie doctors’ hands, “Somebody is going to die, and probably sooner rather than later.”
He told Frankfort lawmakers on March 12 that House Bill 90 is a starting point: “I don’t want to leave anyone with the illusion that we all think this is great. We think it’s an acceptable short-term solution for dealing with a really serious problem that’s in front of us.”
It does not broaden the current standard; only pregnant women with life-threatening complications can legally get abortions in Kentucky. The bill just tries to better define what’s included in this exception.
“There are no additional exceptions to abortions in this. It adds a clarifying definition of what the life of the mother exception is,” lead bill sponsor and Middletown Republican Rep. Jason Nemes said on the House floor March 13.
Part of that clarification includes a non-exhaustive list of emergency conditions doctors can treat with abortions, without risking legal punishment, including: ectopic and molar pregnancies, sepsis and hemorrhages, potentially lethal miscarriages, as well as any other procedure “necessary ... to prevent the death or substantial risk of death” of a pregnant woman, as well as to prevent the “serious, permanent impairment of a life-sustaining organ of a pregnant woman” — language that’s already included in Kentucky’s current abortion ban.
The bill also attempts to clarify that doctors who provide medically necessary abortions can’t be subject to criminal punishment, though violators of the law can still be charged with a felony.
Legal experts say that while the bill is slightly improved, it also serves to codify Kentucky’s unforgiving abortion laws. Doctors still cannot treat patients with nonviable pregnancies, for instance, unless the patient’s life is immediately threatened. Patients with those conditions, which occur far more often than the specific instances mentioned in House Bill 90, will still be forced to travel to a state with fewer restrictions to get that type of care.
“On the one hand, you could say, ‘Well, this is actually something, which, given there’s a Republican supermajority, is a win that should be celebrated,” said Mary Ziegler, law professor at the University of California-Davis who specializes in the legal history of abortion.
“Or you could look at this and say, it’s clarity that the law is actually just as bad as we thought it was,” Ziegler said.
But even the revised language fails to give doctors enough freedom to provide the standard of care to all patients with severe enough complications, she said. That’s partly because there’s inherent friction between how doctors use the procedure as an evidence-based form of health care and a law that broadly criminalizes it, while still trying to offer doctors some carve-outs. Reconciliation between those ideas cannot be reached, they agreed.
In a research paper examining the “inevitable vagueness of medical exceptions to abortion bans,” Eichner and a team of researchers interviewed OBGYNs and maternal-fetal medicine doctors in states with such bans, including Kentucky.
They found that even in states like Texas, where lawmakers have tried to clarify their bans’ exceptions language, there’s still a “disjuncture between medical practice and the statutory language physicians are expected to apply.”
Because of the exception “vagueness,” doctors are still prevented from providing abortions to pregnant patients in crisis who need them, even if their state law is supposed to allow them to.
Still, that’s not an argument against an incrementalist approach to softening the ban, even with bills like House Bill 90 that get a lot wrong and a little right, said Greer Donley, law professor at the University of Pittsburgh who studies abortion policy.
“Let’s imagine a world in which the law saves five extra people a year in Kentucky,” Donley said. “For me, I would say, ‘Why would we veto a bill if it could save five extra lives?’”
But some angst about House Bill 90 is legitimate, Donley said — new language about miscarriages is ambiguous, for example, and it’s unclear if the miscarriage has to progress to the point of requiring “life-saving” treatment before a doctor can intervene.
“Here’s the hard part: Maybe it makes it a little bit easier for folks to feel confident treating a molar pregnancy or PPROM” — another emergency diagnosis that doctors have stalled in treating in Kentucky — “but it’s at the expense of it potentially making it harder to treat a miscarriage,” Donley.
She said the bill offers “marginal, at best, changes.”
Kentucky’s situation — with lawmakers trying to further legislate complicated health care scenarios, sometimes with input from doctors like Goldberg — is playing out in states across the U.S., said Donley, who co-authored a 2024 paper on the topic in the Duke Law Journal.
Donley tracked the disparate definitions of abortion across states with bans, and the exceptions baked into those laws, including ones intended to return autonomy to doctors treating pregnancy complications. But in more cases than not, these policies, even after clarifying attempts, are still “unconstitutionally vague,” she said.
“I’m willing to accept 100% that the physicians working on (House Bill 90) were acting in good faith for what they believed would be best for their patients,” Donley said. “But the question’s not going to be what they intended the law to do. The question is going to be after the fact, when attorneys, judges and potentially juries are looking at the statute, asking, ‘Did they do anything wrong?’”
That, Donley said, is the key question: Can evidence-based medical care operate safely within the blurry lines of abortion bans with steep, criminal penalties?
It’s a reality she believes is “unworkable.”
Still, in a state like Kentucky, where the political supermajority has not indicated any interest in broadly restoring abortion access, House Bill 90 marked Republicans’ first real attempt to modify the existing ban. And it was met with staunch resistance from Beshear, who campaigned on the need to add abortion exceptions, as well as many advocates and fellow Democrats.
That left some abortion policy experts wondering: What does political compromise on abortion policy look like?
Senate Minority Whip David Yates, a Democrat from Louisville, said he supports Beshear’s veto because House Bill 90 may do more harm than good. But he also said that, generally, returning any amount of medical power for doctors to treat patients is worth pursuing, even if it’s not perfect.
“If we have the ability to legislate to make sure women are safer, we should, even if it’s one woman,” he said in an interview. “I think in Kentucky, any type of small step forward is a win.”
‘Dancing around the real problem’
Part of the abortion language in House Bill 90, introduced in the final days of the 2025 regular session, was drafted by Goldberg. The rest was written by a handful of Republicans.
The result, both Goldberg and Nemes said, was a compromise.
The bill still includes non-medical, politicized language, like referring to a fetus as an “unborn child,” and defining a doctor-recommended abortion as “separating a pregnant woman from her unborn child.”
It also incorrectly defines an abortion. The bill says “medically necessary intervention(s),” like removing an ectopic pregnancy, are not abortions, even though, by definition, they are.
“Would you agree that those are non-medical terms?” House Minority Whip Lindsey Burke asked Nemes on the House floor earlier this month.
“We can quibble, but doctors know what that means,” Nemes told her. “You can call it an abortion, whatever you want. It’s very clear, and I don’t think there’s any room for any misunderstanding.”
But experts say it’s not that clear.
Redefining abortion in the name of offering greater clarity and autonomy for doctors only muddles the waters by further shrouding the medical procedure in a politicized thicket of non-medical terms and definitions, they said.
Donley tracked this trend in her 2024 paper, too, noting “abortion-hostile states, responding to medical tragedies they created, are redefining abortion itself,” which invariably creates more “public confusion.”
Still, a slight improvement in clarity, or a tweak in the definition of abortion, probably matters less than the potential for a doctor to be charged with felony for providing an abortion in violation of the law, Ziegler said.
“A lot of physicians aren’t going to say, ‘Well, there’s incrementally more clarity, therefore I’m willing to risk going to prison,’” she said. “To some degree, all these exceptions bills are kind of dancing around the real problem, and for that reason are not likely to change the status quo substantially. If you want to move the needle for physicians, probably what you would need to do is lower the penalties.
“I think there are Republicans genuinely worried about miscarrying patients being unable to get care. But I also think exceptions bills have become a legal and political problem they’re trying to solve as much (for them) as they are for patients.”
This story was originally published March 27, 2025 at 5:00 AM.
