After the defeat of an anti-abortion amendment in Kentucky, reproductive rights are hanging in the balance of the state Supreme Court, and anti-abortion lawmakers are trying to figure out how abortion might be regulated in the future.
Some Republicans are considering introducing a new law with exceptions to allow abortions in cases of rape and incest. Others are unwilling to consider exceptions.
Rep. Nancy Tate, a Republican from Brandenburg, said it’s hard to predict what the next session will be like. But she said she wants voters to consider another anti-abortion constitutional amendment.
“Absolutely. The misinformation that has been spread about this constitutional amendment is just incredible,” she said.
Tate and several other Republican lawmakers held a pre-election press conference to challenge alleged “misinformation” by abortion rights advocates about the amendment. They claimed opponents mischaracterized the proposal as an abortion ban. Although the amendment would not have banned abortion, it would have made it more difficult to challenge the near-total ban already in place.
But voters from Kentucky rejected the referendum that would have added language to the state constitution, which states that nothing in the document guarantees access to abortion.
Now lawmakers are awaiting a decision from the Kentucky Supreme Court heard a lawsuit by pro-choice advocates who argue that the state constitution guarantees access to abortion.
It’s unclear how the court will rule, but during hearings, some judges grilled Kentucky Attorney General Matt Kuhn, who defended the abortion ban. He argued that voters who rejected the amendment based their understanding on alleged reasons “Misinformation” from abortion rights advocates.
Judge Lisbeth Hughes pushed back, calling the ballot initiative “the purest form of democracy.”
“It’s the people themselves speaking, not through someone else whose views they may or may not fully agree with,” she said.
University of Louisville law professor Sam Marcosson said it’s possible the court could block part of Kentucky’s bans — allowing abortions in cases of rape and incest. But the verdict could go further depending on how the judges interpret the constitution.
“If they did it for a restraining order only for rape and incest cases, they would say we recognize a right here. And we recognize it at least so far. And once they set the precedent that it exists, it opens the door for them to argue about how far along it is,” he said.
The challenge came from the state’s two abortion providers and the American Civil Liberties Union trying to crack down Kentucky’s “trigger law,” which bans abortion except in life-threatening cases, and a separate six-week ban.
What the Republican Legislature might do next
Kuhn, the attorney general’s attorney who heard the case in the Supreme Court, said lawmakers have approached the attorney general’s office to submit a bill that includes exceptions to rape and incest.
“Our General Assembly did not meet after that Dobbs decision, they do not have the opportunity to interfere. Indiana just passed an abortion law that provides exceptions for tragic circumstances and rape and incest, so I hope the General Assembly will consider this issue and the courts will allow them to interfere,” he said.
earlier this year, The Indiana legislature passed a law banning most abortionsalthough it includes narrow exceptions for cases of rape, incest, and certain serious medical complications.
Sen. Whitney Westerfield, a Crofton Republican and chairman of the Senate Judiciary Committee, said it is difficult to predict how the Legislature will handle the abortion issue pending the Supreme Court ruling.
“Right now it’s impossible to know. But I think there is enough support for a compromise solution that agrees with most voters,” he said.
Westerfield said he was considering introducing a new constitutional amendment that would include exceptions for rape and incest.
“I think there would be members of the legislature and members of both parties who would support that. These are allowable exceptions and we’ve had discussions about them,” he said.
The legislature had the opportunity to introduce exceptions for rape and incest they passed the bans by the legislature, but repeatedly rejected.
Westerfield said lawmakers had no opportunity to intervene after that Dobbs The decision was made in the summer. He said that could reopen the possibility of including exemptions.
“We’ve talked about including exceptions before, but they just didn’t pass. So now we need to have the opportunity to weigh ourselves after that Dobbs decision so that we can have this conversation again,” he said.
Tate, the sponsor of Kentucky’s “omnibus” abortion lawsaid she doubted Republicans would back a bill that included exceptions.
“We have the most anti-life legislature we’ve ever had in history. I wouldn’t be at all surprised if someone followed this path of including exceptions for rape and incest, but I’m not sure the legislature will be willing to adopt or support that language,” she said.
What’s next for Democrats?
To Republicans bolstered their majorities In this year’s legislature, Democrats now have 20 seats in the 100-seat House of Representatives and seven seats in the 38-seat Senate.
Louisville Democratic Representative Nima Kulkarni said some of her colleagues are open to supporting a “intermediate” bill that includes exceptions. But she said that wasn’t enough.
“The bill to include these exceptions would really be out of political expediency and offers political protections to Republicans. The argument cannot just end on these exceptions,” she said.
Kulkarni said she hopes Democrats will be motivated to fight for reproductive rights after voters rejected the anti-abortion amendment.
“It would be a great disservice to Kentucky if there were legislators on my side of the aisle who didn’t accept the fact that simply introducing an exception for rape and incest would leave so many people and their health, their finances and their ability to do so missing out run their own lives,” she said.
Even if the Supreme Court agrees to temporarily block Kentucky’s trigger law and six-week ban, a 15-week abortion ban would probably still exist.
Lawmakers passed the 15-week ban earlier this year, Mirroring the Mississippi law that was upheld by the US Supreme Court in his Dobbs Decision.
Kentucky’s version of the 15-week ban was not challenged in state court, although a federal lawsuit is pending over the measure.
Kulkarni said even if the Supreme Court were to block some of Kentucky’s most restrictive abortion bans, the numerous anti-abortion laws passed by lawmakers in recent years would still limit reproductive rights.
“They have tried time and time again to restrict access to abortion in every way they can,” Kulkarni said. “They have had opportunity after opportunity to tone it down and say there should be exceptions to clarify language for healthcare professionals. But they didn’t. So it’s hard to trust them when they’re just working towards political cover.”