In Ky. Supreme Court abortion argument, justices seemed unimpressed by AG arguments
Kentucky’s Supreme Court justices did not seem to be buying many of the arguments made yesterday by Kentucky Solicitor General Matt Kuhn over the state’s trigger law and the six-week abortion ban.
When Kuhn said abortion was never mentioned amid the creation of Kentucky’s Constitution in 1891, Justice Lisabeth Hughes helpfully pointed out that “women did not have the right to vote,” back then, nor own property, not take part in those deliberations. Moreover abortion with the consent of the mother before “quickening” — when a pregnant woman can start to feel a baby move — was legal in Kentucky in the 1800s.
Nor did Hughes think much of Kuhn’s boss, Attorney General and governor wanna-be Daniel Cameron saying last week that the justicescould just ignore the defeat of Amendment 2, which would have explicitly denied the right to an abortion in the constitution. The vote, she said, was “the purest form of democracy.”
When justices asked Kuhn about the current ban causing confusion for doctors about what constituted the life of the mother, the only exception currently allowed, Kuhn intimated the General Assembly would be adding exceptions as soon as they met again in January. That’s when Chief Justice Minton noted that in their last session, they had voted down a bill to add rape and incest to the list of exceptions.
Justice Keller said that it’s not at all clear what the trigger law covers and doesn’t cover. “This exception for the life of the mother does not allow the mother to make any of her own decisions.” If a woman is suffering from an ectopic pregnancy or preeclampsia, she could die before the legal decisions get made.
Tuesday’s arguments were pretty narrow, with a team representing the EMW Women’s Surgical Center and Planned Parenthood asking the Supreme Court to uphold a circuit court injunction on the trigger law so the case could be argued in the lower courts.
But part of what made the arguments so interesting is that a possible solution might emerge. The failure, albeit narrow, of Amendment 2 made it very clear that even conservative states like Kentucky don’t want to lose all access to abortion. If the trigger law and the six-week ban were ruled as violating privacy and self-determination in our Constitution, there is still a 15-week ban in statute on the books. If the trigger and six-week bans were struck down, that would be the law.
Now this is many court arguments about individual rights versus state interest away, and it probably won’t work because anti-abortion Republicans care more about total authority over women than they do about workable solutions to one of our thorniest problems. And, it’s also possible that abortion providers don’t want to be limited to 15 weeks. But I believe that 15 weeks with exceptions for rape, incest and the life of the mother, is something that many Kentuckians could accept. As Hughes said, that’s when 93.3 percent of abortions occur, most of them with medication, not surgery.
The idea that we should stick like glue to a Constitution that was written when women and people of color had no rights is of course absurd. Originalists have grudgingly come around to the idea that our founding documents treated Black people poorly, but they seem unimpressed with the idea that women should have bodily autonomy in 2022.
Most of us, including a majority of Kentucky voters, seem to agree that abortion should be safe, legal and rare. These arguments might be a path to get there someday.
This story was originally published November 15, 2022 at 2:03 PM.
