LEXINGTON, Ky. — In the first regular session of the Kentucky Legislature since the state’s trigger law banning abortion took effect, the Republican supermajority showed little interest in modifying those restrictions.
Five bills were filed by Republicans and Democrats alike in the 2023 session of the General Assembly. None made it even as far as a committee hearing.
The state’s trigger law took effect after federal abortion protections were overturned in June. It bans abortion in virtually all circumstances, except if the life of a pregnant person is imminently threatened. Among the strictest in the country, there are no exceptions for rape, incest or for the range of fetal abnormalities that leave a pregnancy nonviable.
Kentucky’s fetal heartbeat law — also known as a six-week ban on abortion — was also enacted after Roe v. Wade was overturned. It bans abortion after fetal cardiac activity is detected, usually around the sixth week of pregnancy. Health care providers who perform abortions in violation of these bans can be charged with a felony. In response, Kentucky’s only remaining two outpatient abortion clinics sued the state, arguing both laws unconstitutionally infringe on a person’s right to bodily autonomy and self-determination under the Kentucky Constitution’s right to privacy clause.
In the nine months since abortion was first criminalized, Kentuckians rejected a proposal on the November ballot in Amendment 2 that would’ve changed the state Constitution to make clear there is no protected right to abortion. Doing so would have made it much harder to successfully sue the state claiming abortion bans are unconstitutional.
And after a lower court temporarily blocked both bans over the summer, the Kentucky Supreme Court in February sided with the state and declined to give temporary injunctive relief to Planned Parenthood and EMW Women's Surgical Center. The high court’s justices said neither clinic had constitutional standing to argue on behalf of impacted patients. The lawsuit was kicked back down to a lower court, where it will be judged on its merits.
Since abortion became illegal in Kentucky, dozens of doctors have spoken out against the harms wrought by both laws and their narrow exceptions, which they say contradict the evidence-based standard of care for obstetric and gynecological health care and undercuts the patient-doctor relationship.
Other Kentucky physicians have written to lawmakers to explain the medical misinformation inherent in such broadly applied bans, and detailing specific examples of ways those laws are compromising patient care. The Lexington Herald-Leader in February detailed the experiences of two Kentucky women with fatal fetal abnormalities who were denied medically recommended pregnancy terminations under the state’s abortion laws, because their pregnancies still had cardiac activity. One woman was forced to travel to Illinois to be induced, where her baby lived for about two minutes.
Meanwhile, the state’s political party in power has been slow to respond one way or the other, declining to give any of the five abortion-related bills a committee hearing this session.
These are the bills filed this session related to abortion:
—House Bill 300, or the “Prenatal Equal Protection Act” from freshman state Rep. Emily Callaway, R-Louisville, sought to classify unlawful abortion as criminal homicide, or murder, in Kentucky. House Speaker David Osborne and Attorney General Daniel Cameron swiftly criticized the bill as too extreme. It was never assigned to a committee.
—House Bill 569 from state Rep. Jason Nemes, R-Louisville, proposed adding rape and incest exceptions to the state’s abortion bans if a pregnancy is under 15 weeks, as well as exceptions for a fetal abnormality that is “incompatible” with life outside the womb. It was the only attempt by the political party in power to add exceptions. Nemes, like other Republicans, has said Kentuckians would have been more likely to vote in favor of Amendment 2 if the state’s abortion ban had included exceptions for rape and incest. “I had a lot of constituents say, ‘I’m pro-life, but I can’t vote for the amendment because it doesn’t have this rape and incest exception,’” Nemes said at the time. Even so, he implied it might be too heavy of a lift for Republican leadership to get behind, saying when he filed it, “I think we’ve got a number of difficult issues for the (Republican) caucus. This is one of them.” It, too, was never assigned to a committee.
—Senate Bill 91 from state Sen. Denise Harper Angel, D-Louisville, also proposed adding rape and incest exceptions to the state’s abortion bans. It was assigned to the Veterans, Military Affairs, & Public Protection Committee but never got a hearing.
—Senate Bill 118 from state Sen. Whitney Westerfield, R-Fruit Hill, proposed putting another constitutional amendment option before Kentucky voters to ask a near-identical version of the question they rejected in November. Senate Majority Leader Damon Thayer, R-Georgetown, said at the time the “plan was not to pass any constitutional amendments this year.” Westerfield said he knew this and filed the bill anyway, “on the chance” leadership was willing to advance it. “It may not go anywhere, but I wanted to stake my claim and make sure that the pro-life community knew there was still a desire to protect unborn life.” It was assigned to the State and Local Government Committee but never received a hearing.
—House Bill 518 from state Rep. Lindsey Burke, D-Lexington, proposed reinstating statewide access to the full spectrum of reproductive health care, including elective abortion. As Burke put it, it sought to “unwind the clock” on abortion access in Kentucky, back to when it was legal and widely available. Such a proposal had near-impossible odds in a legislative body that regularly touts itself as the “most pro-life” General Assembly in Kentucky’s history, and one that has worked concertedly to whittle away abortion access in the last eight years. It was more symbolic than anything. It never received a committee assignment.
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