Supreme Court kicks abortion can down the road. Again, Ky. women left without choices. | Opinion
I think we were all hoping that the Kentucky Supreme Court would somehow use a case over temporary injunctions to end our long statewide nightmare over whether abortion is constitutional here or not.
But that was not the case in front of them. The case in front of them was about injunctions against the state’s near-total abortion bans, which they overruled, and in so doing, kicked the issue down the road like the tortured tin can it is.
For now, the constitutional issue of abortion will be back to Jefferson County Circuit Court, until it inevitably ends up before the Supreme Court again. As the justices said: “To be clear, this opinion does not in any way determine whether the Kentucky Constitution protects or does not protect the right to receive an abortion, as no appropriate party to raise that issue is before us. Nothing in this opinion shall be construed to prevent an appropriate party from filing suit at a later date.”
Thursday’s opinion is 150 pages long, reflecting a wide array of agreements and disagreements from the justices. Justice Angela Bisig wrote a blistering dissent, accusing the court majority of failing to wrestle with the larger issues of the circuit court’s decision over the temporary injunctions, “a limited hearing that will leave Plaintiffs’ substantial allegations of constitutional infirmity unaddressed.”
The decision effectively ignored lawyers’ arguments that the bans cause “irreparable harm,” she wrote, citing the Herald-Leader’s story last Sunday detailing the heartbreaking stories of two women whose much-wanted pregnancies turned out to have severe fetal anomalies. Hospital legal teams denied them the care they needed. Those are just two recorded stories out of what are no doubt many, many more.
“These real-world examples demonstrate how the bans undoubtedly impact both healthcare providers and patients in concrete ways,” Bisig wrote.
The extremely fine points of the difference between first and third party standing and the difference between state and federal laws in regards to those standings all get a thorough workout in the decision’s pages. Those are for the legal scholars to debate, as indeed the justices have.
For the rest of us, we are left in a state that defeated an amendment to block abortion rights from the state Constitution, but one in which women can’t even get an abortion for rape or incest or when a woman or her baby faces certain death. As I wrote last week, even hardcore conservative states like Louisiana have made a list of medical problems that would allow doctors to treat women facing these excruciating problems.
In Kentucky, we are now left to another long and winding legal process and to the good will and common sense of legislators to add exceptions to the current bans.
It’s not looking hopeful. Sen. Whitney Westerfield, R-Crofton, has already filed a bill to put another constitutional amendment against abortion on the ballot in 2024, and a new legislator just filed a bill to punish abortion as homicide. Leadership has frowned on both these ideas, but it gives you a good idea of where women, their privacy and their rights, stand in many politicians’ eyes.
We are left in no woman’s land once again.
This story was originally published February 16, 2023 at 12:00 PM.
