Kentucky Supreme Court considers blocking key abortion bans in hearing

Morgan Watkins
Louisville Courier Journal

Kentucky's highest court met Tuesday morning to hear legal arguments as it weighs whether two state laws that all but outlaw abortion should be suspended again until a case challenging their constitutionality is decided.

The overarching lawsuit, filed by the commonwealth's two remaining abortion providers, claims Kentucky's near-total "trigger" ban on abortion and its prohibition on abortion after about six weeks of pregnancy, violate the state constitution.

Kentucky Supreme Court Justice Lisabeth Hughes, left, asks a question as Kentucky Supreme Court Chief Justice John D. Minton Jr. listens during arguments before the court whether to temporarily pause the state's abortion ban in Frankfort, Ky., Tuesday, Nov. 15, 2022. (AP Photo/Timothy D. Easley)

Attorney General Daniel Cameron, a Republican, is defending the laws and has argued the constitution, which doesn't actually mention abortion, does not include abortion rights.

Abortion became illegal in Kentucky, with exceptions only for life-threatening health risks, in June after Republican-appointed justices on the U.S. Supreme Court struck down Roe v. Wade, the 1973 decision that held the U.S. Constitution includes a right to the procedure. That shifted attention to state constitutions, with court cases in several states (including Kentucky) examining whether those foundational documents protect abortion rights.

The decision before the Kentucky Supreme Court is whether to reinstate an injunction against the trigger and six-week bans that will last until the state's judicial system reaches a decision about whether those laws are unconstitutional. If the court blocks the bans, that temporarily would restore abortion access for Kentuckians.

Heather Gatnarek, an attorney with the American Civil Liberties Union, listens as the Kentucky Solicitor General makes his presentation to the Kentucky Supreme Court as they hear arguments whether to temporarily pause the state's abortion ban in Frankfort, Ky., Tuesday, Nov. 15, 2022. (AP Photo/Timothy D. Easley)

The court's justices aren't set to rule on whether the state constitution protects abortion rights, which is the central question of the broader lawsuit. When the state courts finally settle on that decision, it'll affect whether Kentuckians can get an abortion over the long term.

More:How did Kentucky vote on the abortion amendment? These maps tell the story

Here's an overview of what happened at Tuesday's hearing, and what could happen next.

Failed Constitutional Amendment 2 got brought up

The justices heard legal arguments for one hour , and Kentucky voters' defeat last week of a proposed constitutional amendment came up within a couple of minutes.

Constitutional Amendment 2 would've nixed the abortion providers' core argument that the trigger and six-week abortion bans are unconstitutional by changing the constitution to explicitly say it doesn't protect a right to abortion. When voters rejected that proposal, which the Republican-run state legislature placed on the ballot, they ensured this court case can continue.

Kentucky Supreme Court Justice Lisabeth Hughes asks a question to the attorney for the American Civil Liberties Union as they hear arguments whether to temporarily pause the state's abortion ban in Frankfort, Ky., Tuesday, Nov. 15, 2022. (AP Photo/Timothy D. Easley)

Retiring Deputy Chief Justice Lisabeth Hughes − who said in an earlier opinion alongside retiring Chief Justice John Minton Jr. that abortions should be permitted until this case is resolved − expressed skepticism about the notion that the Amendment 2 vote has no impact on this case, saying: "It is the people themselves speaking."

Kentucky Solicitor General Matt Kuhn, who presented the attorney general's arguments Tuesday, said Amendment 2, if adopted, would've made "explicit what we argue is already implicit" − meaning their claim that the state constitution does not include a right to abortion.

"What I would suggest is that a decision not to add words to our constitution does not change the meaning of the words that are already there," he said.

Hughes also questioned Kuhn's argument that judicial interpretations of the constitution's meaning should refer to what was intended when that document was developed during the Constitutional Convention of 1890-91. (Kuhn said records give no indication that the convention's delegates intended to protect abortion rights.)

She pointed out women weren't delegates at that convention and did not even have the right to vote yet.

"So I have some questions about the necessity of grounding our decision in 2022 on what occurred in 1890," Hughes said, adding that common law back then permitted abortion until some point in the second trimester of pregnancy. (Kentucky's legislature later banned abortion, with exceptions only to save the pregnant person's life, in 1910. That law got repealed in the 1970s after the Roe v. Wade ruling.)

Abortion rights protesters came to the state Capitol Tuesday, and their muffled chants could be heard inside the courtroom during the hearing. They continued after it ended, waving signs and shouting slogans that promised they won't give up the fight and suggested Kentucky's anti-abortion attorney general has "got to go."

Protesters outside the Kentucky Supreme Court chambers rally in favor of abortion rights as the Kentucky Supreme Court hears arguments whether to temporarily pause the state's abortion ban in Frankfort, Ky., Tuesday, Nov. 15, 2022. (AP Photo/Timothy D. Easley)

Rebecca Standifer of Shelbyville, who grew up in Eastern Kentucky, criticized Cameron for defending these bans' constitutionality after voters rejected the proposed amendment, saying: "It feels like a betrayal because, you know, the people spoke."

Justices question abortion bans' exceptions and providers' legal standing

Multiple justices asked about the impacts of the abortion bans' lack of exceptions for patients whose pregnancies were caused by rape or incest, as well as a perceived lack of clarity on whether certain health problems qualify as life-threatening circumstances under which the bans permit abortion.

Justice Michelle Keller, a former nurse who just got reelected, emphasized the lack of agency a pregnant patient has in making medical decisions where their life is at stake under the current bans.

"This exception for the life of the mother does not allow the mother to make any of her own decisions. The decision is left up to whatever physician is on call when the life-threatening emergency arises," Keller said. "And if there's a man bleeding out in the ER, he has all the self-determination in the world, and most women do too unless they're in a state of pregnancy. And then suddenly, there is no self-determination."

Kentucky Supreme Court Justice Debra Lambert asks a question as the court hears arguments whether to temporarily pause the state's abortion ban in Frankfort, Ky., Tuesday, Nov. 15, 2022. (AP Photo/Timothy D. Easley)

Justice Debra Lambert asked about the attorney general's argument that the providers lack legal standing to bring this case, mainly because they aren't women directly impacted by the bans and because such women could file a lawsuit like this themselves under a pseudonym.

Attorney Heather Gatnarek of the ACLU of Kentucky, who presented the abortion providers' arguments Tuesday, contended the providers have legal standing for multiple reasons, such as the fact that doctors face potential criminal and professional penalties if they provide illegal abortions and because "the patient's constitutional right to an abortion is inextricably bound up with the provider's ability to provide that care."

The broader question of where to draw the line on legal abortion if the trigger and six-week bans get struck down came up Tuesday, with Gatnarek generally saying there probably would be a point at which the court would rule the state's interest in protecting a fetus outweighs any relevant rights the patient might have.

Before the U.S. Supreme Court overturned past federal rulings in June, that line was the point of viability, when a fetus could survive outside the patient's body.

Kentucky Supreme Court Justice Lawrence VanMeter asks a question to Kentucky Solicitor General as they hear arguments whether to temporarily pause the state's abortion ban in Frankfort, Ky., Tuesday, Nov. 15, 2022. (AP Photo/Timothy D. Easley)

Justice Laurance VanMeter ​​​​​​​had a couple of key questions for Gatnarek, including whether the legislature, not the courts, should draw that line. "Isn't that ultimately the role of the legislature?" he asked.

Gatnarek responded: "It is the role of the legislature to legislate, but they must do so within the confines of what this court tells them is constitutionally permissible."

When will we get a ruling?

That's unclear, but the Supreme Court could issue a decision quickly on whether to keep the abortion bans in place or temporarily block them.

What happens if the Supreme Court grants the injunction?

That would make abortion legal again across Kentucky for however long it takes to decide on the constitutionality of these two bans. However, it would only block the trigger and six-week bans.

That means Kentuckians would once again be able to get abortions, which have been almost completely illegal for several months, until they reach the 15th week of pregnancy. After that point, the procedure still would be prohibited under a different state law that this lawsuit isn't challenging.

Planned Parenthood and EMW Women's Surgical Center in Louisville, which provided abortions before they largely became illegal this summer, quickly sued in June and won early victories when Jefferson Circuit Judge Mitch Perry temporarily suspended both bans and then ruled in July that they should stay blocked, via an injunction, until the case was decided.

But then state Court of Appeals Judge Larry Thompson reinstated the bans in early August, after which the injunction issue got kicked up to the state Supreme Court.

If the high court blocks the bans again as Perry did, that longer-term injunction allowing abortions could last a while. Perry hasn't issued a definitive decision on whether the state constitution effectively includes abortion rights, though he indicated in his injunction-related ruling that it appeared as though it does, based on provisions concerning privacy and other rights.

What happens if the Supreme Court doesn't grant the injunction?

If that happens, then abortion would remain almost completely prohibited across Kentucky while this lawsuit makes its way through court.

Whatever final ruling is eventually reached would determine whether abortion is accessible in the long term.

Could the Supreme Court narrow the scope of the possible injunction?

That's what Kuhn, of the attorney general's office, suggested to the justices during Tuesday's hearing.

After justices asked about the bans' lack of exceptions for rape or incest, Kuhn said they potentially could approve an injunction that allows abortions under those circumstances but otherwise keeps the trigger and six-week bans in place while this case makes its way through court.

Reach reporter Morgan Watkins at mwatkins@courierjournal.com. Follow her on Twitter: @morganwatkins26.