The Kentucky Supreme Court wants to consider statewide abortion bans

FRANKFORT, Ky. (AP) — The future of abortion rights in Kentucky reaches a pivotal moment Tuesday as the state’s highest court hears arguments about a sweeping abortion ban introduced by the Republican-led legislature.

The case in the Kentucky Supreme Court is the first legal test since voters in Kentucky and three other states signaled their support for abortion rights in midterm elections last week. Kentuckians opposed a voting measure that would have denied abortion rights in the state’s constitution.

“His defeat — at the very least — keeps plaintiffs’ claim alive that the Kentucky Constitution protects a woman’s right to vote,” University of Louisville law professor Samuel Marcosson said before the court hearing. “The result does not prove that there is such a right; that remains a question for the court, depending on their view of the extent of Kentucky’s constitutional right to privacy.”

Kentucky judges will review a challenge to the state’s trigger statute, which banned nearly all abortions and went into effect after Roe v. Wade was overturned by the US Supreme Court in June. The law, passed in 2019, provides narrow exceptions to save a pregnant woman’s life or prevent disability. There are no exceptions for rape or incest victims.

What effect, if any, the defeat of the anti-abortion measure will have on the Kentucky court has been the subject of intense debate in the days leading up to the hearing.

Gov. Andy Beshear, a Democrat, expressed hope that the state’s highest court “will listen to the will of the people and know that the people have rejected extremism and are governing accordingly.”

His chief enemy, Republican Attorney General Daniel Cameron, whose office is defending the statewide ban in court, continued to claim that there is “no right to abortion in the Kentucky Constitution.” He said abortion policy should be left to state legislatures, where GOP majorities have passed a slew of anti-abortion measures in recent years. Cameron is among several Republicans trying to challenge Beshear’s 2023 reelection bid.

The hearing comes a week after abortion rights advocates won every state poll put to voters in the midterm elections. Michigan, California and Vermont voted to enshrine abortion rights in their state constitutions. Montana voters rejected a voting measure that would have forced medical workers to take life-saving measures in the rare event that a baby is born after an attempted abortion.

In Kentucky, the abortion case worked its way through lower courts before reaching the Supreme Court while the referendum battle played out in the background. In July, a Louisville judge said the new Roe abortion bans likely violate “rights to privacy and self-determination” protected by the Kentucky Constitution. Judge Mitch Perry said it is not the court’s job to determine whether the state’s constitution provides for the right to abortion, but rather whether the state’s restrictive laws violate constitutionally guaranteed freedoms.

The near-total abortion ban was reinstated after an appeal to the Intermediate State Court of Appeals. The state Supreme Court later chose to uphold the abortion ban while reviewing the case, putting abortions on hold in Kentucky and forcing women who could afford the procedure to look elsewhere. A separate six-week ban, also approved by the Kentucky legislature, is being contested by the two remaining abortion clinics in the state of Bluegrass — both in Louisville, the state’s largest city — and would almost certainly be hit if judges found that the State abortion constitution protects abortion rights.

A year ago, Kentucky lawmakers added the anti-abortion amendment to the 2022 general election list, as anti-abortionists hoped to cut off a legal path to restoring abortion rights. The measure would have declared that the state constitution does not protect the right to an abortion. Some thought the move would bring more conservative voters to the polls at a time before Roe v. Wade fell.

Now that the amendment has been rejected, the focus shifts to legal arguments surrounding abortion rights. The stakes are seen as huge as Kentucky judges prepare to hear arguments from both sides.

“If the state Supreme Court finds that the Kentucky Constitution does not limit the power of the General Assembly to regulate abortion, then neither the U.S. nor the state constitution would place limits on the potential abortion restrictions that legislatures could enact,” he said Marcosson. “This case is almost certainly the only realistic way to protect abortion rights in Kentucky for the foreseeable future.”