Abortion would end in KY if Roe v. Wade is overturned. Here’s a breakdown of state’s laws
Abortion access in Kentucky could come to an abrupt end if the U.S. Supreme Court’s draft opinion overturning Roe v. Wade is handed down this summer.
According to a draft ruling written by Justice Samuel Alito and obtained and published by Politico Monday night, the high court intends to reverse five decades of constitutional protection for abortion and cede regulatory power of the medical procedure to states.
For half a century, Roe has enshrined constitutional protections for reproductive rights, otherwise blocking states from outlawing abortion entirely before a fetus is viable, typically around 23 weeks. But if the leaked opinion in Dobbs v. Jackson Women’s Health Organization is the one handed down by the conservative majority court later this summer, it will mean an immediate end to abortion access in Kentucky, with few exceptions.
A “trigger law” passed by the Republican-majority Kentucky General Assembly in 2019 blocks all access to the medical procedure “effective immediately” if Roe is overturned. Kentucky is one of 13 states with a trigger law in place, according to the Guttmacher Institute, while 26 states, overall, are certain to ban or likely to ban abortion. All states surrounding Kentucky have passed laws restricting abortion access, except Illinois, Virginia and North Carolina.
There are no exceptions for rape or incest in Kentucky’s trigger law, or for minors seeking abortions. Only if the pregnant patient faces a “substantial risk of death” can a physician still perform an abortion without risking a Class D felony charge, or “to prevent serious, permanent impairment of a life-sustaining organ.”
In the meantime, “abortion is still safe and legal in Kentucky,” Planned Parenthood Great Northwest CEO Rebecca Gibron said in a statement Tuesday. “But last night’s leaked opinion makes it clear that our deepest fears are coming true: abortion access is at a crisis point.”
A post-Roe reality is a grim one, Gibron said.
“What’s coming is dangerous and will open the floodgates for states across the country to ban abortion, devastating communities nationwide,” she said.
What are KY’s other laws limiting abortion access?
Since Republicans won control of the General Assembly in 2016, Kentucky has passed a handful of laws intended to revoke abortion access entirely, buttressed by a patchwork of smaller laws that, until Roe is overturned, make the procedure difficult to access:
- Constitutional amendment: Lawmakers in 2021 passed House Bill 91, which seeks to revoke a person’s guaranteed right to an abortion in the Kentucky constitution if Roe is overturned. This law requires voter approval, meaning later this year in a statewide referendum, Kentuckians will vote on whether to add this sentence to the constitution: “To protect human life, nothing in this Constitution shall be construed to secure or protect a right to an abortion or require the funding of abortion.”
- A 2017 “ultrasound law” requires physicians who perform abortions to first complete an ultrasound with a patient before an abortion, to show the image of the fetus and the audible sound of the fetal heartbeat.
- Abortion reversal law: A law passed in 2019 forces abortion providers to provide medically-disputed information to patients that early-stage medication-induced abortions may be reversed by taking a series of pills.
- Attorney General expanded powers: A 2021 law bestowed Kentucky Attorney General Daniel Cameron with authority to regulate the state’s two abortion clinics in Louisville, Planned Parenthood and EMW Women’s Surgical Center — a move the American Civil Liberties Union of Kentucky called a “campaign to push constitutionally protected abortion care out of reach, bit by bit.”
Other abortion laws passed in Kentucky remain snarled in legal challenges, including a 2019 fetal heartbeat law, which seeks to ban all abortions after six weeks (typically around the time fetal heartbeat is detected), and a 2018 law restricting dilation and evacuation abortions, a common abortion method in the second trimester of pregnancy after about 14 weeks. Yet another pending legal challenge has blocked a third law from taking effect — a 2019 disability law that bans abortion if a woman wants one because of the race, gender or disability of the fetus.
What does KY’s newest abortion law do?
In the 2022 general session’s omnibus House Bill 3, lawmakers overrode a veto from the governor and outlawed abortion after 15 weeks — a portion of the law modeled after the Mississippi case before the Supreme Court and a repeat of another Kentucky law passed in 2018.
The new law, which is currently blocked from being enforced by a temporary restraining order while a federal judge considers a preliminary injunction, also bans mailed abortion pills; raises the bar for teens seeking a court’s permission for an abortion; and requires the state to maintain an expansive new certification and monitoring system to track abortions performed in Kentucky. Opponents also claim the new law will lead to intimidation and harassment of abortion providers, since the new law requires their full names and addresses be added to a publicly searchable database.
Privacy issues of patients are also a concern; under the new law, the pregnant patient’s age, race, ethnicity, city or town and county of residence, and zip code would also be reported publicly, as would their total number of previous abortions or live births, any pre-existing medical conditions, sexually transmitted diseases, and the approximate age of the father.
Abortion providers who violate the most recent abortion law face steep fines, loss of medical license and a felony charge.
Can I get an abortion in Kentucky right now?
Kentucky’s full-stop trigger law ban only takes effect if and when Roe is overturned. Though abortion is still accessible in Kentucky right now, access could narrow in the meantime because of House Bill 3.
When the newest state law took effect two weeks ago, Planned Parenthood and EMW Women’s Surgical Center immediately asked a federal court to intervene on the basis that compliance with the portions of the law is currently impossible, and the 15-week ban is unconstitutional under Roe.
Their request for a temporary restraining order against HB 3 was granted by Judge Rebecca Grady Jennings on April 21. After hearing arguments from both parties on Monday, Jennings opted to extend a “modified” version order for another 14 days. Now set to expire on May 19, the renewed order will only block parts of the law from being enforced. More details weren’t provided.
In the interim, Jennings will consider whether to block enforcement of the law for even longer.
Though the Supreme Court appears poised to reverse Roe, and Kentucky has worked to narrow access to the procedure in the last six years, public opinion doesn’t demand it. According to a 2021 poll from the Pew Research Center, 59% of Americans — roughly 6 in 10 people — think abortion should be legal in most cases, while 39% think it shouldn’t be.
Where will lawmakers go from here?
Central Kentucky state senators responded positively to news of the draft ruling at a press conference on Tuesday.
Senate Majority Floor Leader Damon Thayer said that Roe v. Wade getting overturned would be a positive development for Kentucky and that Senate Republicans are “hopeful” that Alito’s draft ruling will come to fruition.
Sen. Donald Douglas, R-Nicholasville, condemned the fact that the ruling was leaked, but said the General Assembly was “ready” to continue to create “some of the toughest laws that there are” on abortion.
Senate Health & Welfare Committee Chairman Ralph Alvarado, R-Winchester, emphasized the state’s trigger law contains exceptions for health of the pregnant patient and joined colleagues in denouncing perceived damage to the Supreme Court as an institution caused by the leak of Alito’s ruling.
When asked what next steps might be taken, Thayer said it was too preliminary to say.
“I think we’re all just hopeful and ready to get to work in January if the regulation of abortion is sent back to the States by the potential overturning of Roe v. Wade,” Thayer said.
Herald-Leader reporter Austin Horn contributed to this report.
This story was originally published May 3, 2022 at 10:15 AM.
