WASHINGTON — Kentucky voters delivered a major victory for abortion rights in the midterms, but the battle there and in other states is not over — it’s just moved to the courtroom.
Despite the defeat of a ballot measure that would have established that there is no right to an abortion in Kentucky’s state constitution, the procedure is still almost entirely banned in the deeply Republican state after the Supreme Court overturned Roe v. Wade. Now, abortion rights supporters are continuing their challenge to those restrictions in the first major legal fight to play out after the midterms.
“We needed to both win the ballot and now we have to win in the courts, and luckily we can continue our fight in the courts because we won the ballot,” said Brigitte Amiri, an attorney for the American Civil Liberties Union in the ongoing litigation, describing the battle to restore access as a “one-two step.” If the ballot measure had passed, the lawsuit would not have been able to continue.
In the wake of the June Supreme Court decision that eliminated the federal right to an abortion, legal battles are being waged across the country, with 19 states engaged in ongoing litigation, according to the Guttmacher Institute, a leading reproductive health organization. Those challenges highlight that although midterm voters handed abortion rights supporters several victories on ballot measures and in races, the fight for abortion access continues in large swaths of the country.
Kentucky’s case demonstrates the complexity of a post-Roe world as the courts are weighing the competing interests of a majority of Kentucky voters and the majority in the state Legislature.
The ballot measure, known as Amendment 2, lost by 4.6 percentage points, but that still left in place two state laws that kicked in following the Supreme Court decision. As a result, nearly all abortions are now illegal in Kentucky. The state’s only two abortion providers, EMW Women’s Surgical Center and Planned Parenthood, and abortion rights advocates sued the state’s attorney general just days after Roe was overturned.
The two laws being challenged, a six-week ban and a trigger ban, have only narrow exceptions, which has medical providers worried about their legal risk if they perform abortions. There are no exceptions for rape or incest. And in the six-week ban, the window for having an abortion has generally passed by the time many people realize they are pregnant. All this in a state that the limited available data suggests has the nation’s worst rate of maternal mortality, according to the United Health Foundation’s 2021 Health of Women and Children Report.
Last week, the Kentucky state Supreme Court heard oral arguments about whether to place an injunction on the abortion restrictions that would block their enforcement until the case is decided. If granted, that would immediately legalize abortions up to 15 weeks, the threshold created by a third and separate abortion law passed earlier this year. As the judges listened to the attorneys, abortion rights supporters chanted outside the chamber.
The challenge to the bans hinges on the state constitution’s right to privacy and self-determination, established in a 1992 case, the Commonwealth v. Wasson, that held that there is a right to privacy for same-sex relations. Abortion rights supporters also argue that by relying on another entity to determine certain aspects of the trigger ban — for example, by depending on a Supreme Court ruling to determine when the law would go into effect — the state Legislature delegated its authority in a way that is inconsistent with the state constitution.
The antiabortion side, represented at oral arguments by Kentucky Solicitor General Matthew Kuhn, argued that the state constitution is “neutral” on abortion, and that the matter should be left to the Legislature.
“It strikes me that a ballot initiative is the purest view of democracy,” outgoing Deputy Chief Justice Lisabeth Hughes told Kuhn during the arguments. “It is the people themselves speaking. . . . Why are you suggesting that it has no impact on the issues before us today?”
Kuhn said that if the ballot initiative had passed, it would only have made “explicit” that the right to an abortion does not exist in Kentucky. But even as the state constitution’s language stands, he said, there is still no “implicit” right to an abortion. He also argued that the constitution cannot protect abortion because no one at the time it was enacted in 1891 hinted at that being the intention, to which Hughes responded that no women were present at the state constitutional convention, nor did they even have the right to vote.
There is no clear timeline on when the Kentucky Supreme Court will respond to the request for an injunction, and afterward the case is expected to return to the circuit court level for a trial on the merits. In granting an earlier injunction, at least one lower court judge, Mitch Perry, appeared to agree with the abortion rights side, finding that “there is a substantial likelihood that these laws violate the rights to privacy and self-determination.”
But that injunction was overturned on appeal and the laws took effect. Neither of the abortion clinics, both located in Louisville, has provided abortions since the summer.
Of the states that had ballot questions in November, Kentucky perhaps most reaffirmed the popularity of abortion access, given the state’s deep-red status. While voters rejected the abortion amendment, they also soundly reelected Senator Rand Paul, and added to Republican majorities in the Legislature.
Still, abortion rights activists took heart in the results overall. In addition to the amendment win, voters also rejected state Supreme Court candidate Joe Fischer, who ran a partisan campaign and has a history of being antiabortion; he is the architect of at least one of the abortion restrictions being challenged in the state now.
“We firmly believe that even in spite of the fact that Kentuckians chose not to pass Amendment 2, that really doesn’t change the legal dynamics in a strong case,” said David Walls, executive director for the Family Foundation in Kentucky, which is antiabortion. “I hope and I think the law is on our side on this.”