Kentucky High Court Considers Abortion Ban Days After Key Election Measure

A week after Kentucky voters rejected an anti-abortion measure, the state Supreme Court is considering whether a previously passed state ban on abortion by lawmakers can remain in effect.

The court is considering a lawsuit challenging two of Kentucky’s 2019 abortion laws, one of which is a so-called trigger law, also known as the Human Life Protection Act, which bans nearly all abortions in the bluegrass state except for narrow exceptions like the saving the life of the mother. A separate law known as the Heartbeat Act, or a six-week abortion ban, is also being challenged as part of the lawsuit brought by the American Civil Liberties Union.

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The case is the first time courts have considered Kentucky’s restrictive abortion laws since voters rejected a voting measure that would have denied abortion rights in the state’s constitution, a signal that some voters are not interested in a near-complete abortion . If the state Supreme Court sides with abortion providers challenging the law, clinics could begin performing abortions up to 15 weeks gestation.

An attorney for Republican Attorney General Daniel Cameron’s office defended the state’s laws and urged judges “not to create the Kentucky version of Roe v. calf.” Attorneys for the ACLU, which is suing on behalf of clinics and providers, underscored that voters “refused to remove protections from abortion from our constitution.”

“It seems to me that a ballot initiative is the purest form of democracy,” said Deputy Chief Justice Lisabeth Hughes, an appointment by former Republican Gov. Ernie Fletcher. “It’s the people themselves who speak.”

An ACLU attorney, Heather Gatnarek, argued that the tougher laws violate privacy rights that have been enshrined in the state constitution since 1891. Parties challenging the laws are also asking the state’s Supreme Court to temporarily block the ban while the case rolls in court.

“It is the legislature’s role to legislate, but they must do so within the limits of what this court tells them is constitutionally permissible,” she said.

But Kentucky Attorney General Matthew Kuhn, who defends the state’s abortion laws, said the measure’s defeat does not change existing constitutional language or the lack of “historical evidence” to suggest the state constitution allows for abortion protections.

“When it comes to abortion, our constitution here in Kentucky is just silent,” Kuhn told judges during Tuesday’s hearing.

Kentucky Gov. Andy Beshear, a Democrat, hopes the state Supreme Court justices will “listen to the will of the people and know that the people have rejected extremism and are governing accordingly,” referring to the rejected election proposal .

The vote change was added to the 2022 general election list a year ago by the Republican-controlled state Legislature to block access to abortions in the state.

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If challengers manage to argue that state constitutional language on privacy extends to abortion rights, a position a lower court has agreed to, a legal victory for the ACLU could result in both the ban being overturned at of conception and the six-week ban are blocked.

Kentucky’s 15-week abortion ban is being challenged in a separate case and would remain unchanged by the outcome of the case currently being considered by the Supreme Court.

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