Lexie Overstreet logged plenty of miles on foot, knocking on doors to try to persuade Kentuckians not to take away one of the last legal paths to restoring abortion rights in the state.
Now she's hoping her side's win at the ballot box Tuesday will convince the state's highest court to throw out a sweeping abortion ban passed by the Republican-led legislature.
“It was great to wake up this morning and know that Kentuckians are on the same side as me,” the 21-year-old University of Louisville student and volunteer said after the election. “And know that the thousands of doors that I knocked aren’t going to be forgotten and that all those people I talked to, they cast their vote and their vote was heard.”
Whether those voices will resonate with the Kentucky Supreme Court, which is set to hear arguments for and against the ban Tuesday, hinges on legal arguments about whether state constitutional protections extend to a right to an abortion. With a hearing set for Tuesday, the case looms as the first legal test for abortion rights after midterm elections in which voters across the country came down firmly on the side of keeping abortion legal. No timeline has been given for a ruling.
In Kentucky, abortion rights supporters think the amendment's rejection should be a consideration as the justices hear the case.
“My hope is that the Supreme Court will listen to the will of the people and know that the people have rejected extremism and rule accordingly,” Gov. Andy Beshear, a Democrat, said in the days leading up to the pivotal court hearing.
Beshear, who is running for reelection next year, can take comfort in knowing that his position on abortion rights puts him squarely on the side of a majority of Kentuckians. But one of the GOP candidates hoping to take his job next year said the vote shouldn't be a factor.
Republican Attorney General Daniel Cameron said the result, though disappointing, didn't change his belief that there is “no right to abortion hidden in the Kentucky Constitution.” Abortion policy, Cameron said, “belongs to our elected representatives in the General Assembly” to decide.
Right now it belongs to the courts, with attention shifting to the courtroom at the Kentucky Capitol in Frankfort, where the Supreme Court justices will hear arguments in the case.
Those arguments will center on a Louisville judge’s ruling from July, when he wrote that the state’s new, post-Roe abortion bans likely violate “the rights to privacy and self-determination” protected by Kentucky’s constitution. Judge Mitch Perry said it was not the court’s role to determine whether the state constitution contains the right to abortion, but whether the state’s restrictive laws violate freedoms guaranteed by its constitution.
It's unclear how much impact, if any, the anti-abortion measure’s defeat will have on the court's views on the case.
“It may well differ from justice to justice,” said University of Louisville law professor Samuel Marcosson. “Some of them may view the defeat of the initiative as a strong signal that Kentuckians believe there is and should be a right in the constitution, and this could empower those justices to rule that way. Others may say that it is at best an uncertain signal, and that it remains a task for them to determine the meaning of the constitution.”
Abortion opponents had hoped to shut off such a path through the courts. The amendment would have added “clarity and an extra level of protection against judicial activism,” said David Walls, executive director of The Family Foundation, a faith-based organization opposed to abortion.
Currently, abortions are mostly on hold in Kentucky, based on a trigger law at the center of the case before the state Supreme Court. Approved by lawmakers in 2019, the ban took effect after Roe v. Wade was overturned in June by the U.S. Supreme Court. That law ended all abortions with narrow exceptions to save a pregnant woman’s life or to prevent disabling injury. There are no exceptions for rape or incest victims. The state's high court in August kept the ban in place while it reviews the case. A separate six-week ban that Kentucky lawmakers approved also is being challenged.
Now abortion rights supporters hope the amendment's defeat is a springboard to victory in court.
“It is an important step in continuing the legal fight for abortion access in this state,” said Rachel Sweet of Protect Kentucky Access, an abortion-rights coalition. "Moreover, it is a repudiation of the extreme anti-choice agenda that is out of step with most voters’ values and beliefs.”
Attorneys for the two abortion clinics left in Kentucky — both of them in Louisville, the state's largest city — will ask the state's high court for an injunction to allow abortions to resume while the case is litigated.
Meanwhile, abortion rights supporters secured wins elsewhere across the country. Michigan, California and Vermont voted to enshrine abortion rights in their state constitutions. Voters in Montana rejected a ballot measure that would have forced medical workers to attempt lifesaving measures in the rare event of a baby born after an attempted abortion.
In Michigan, Democrats who took control of the Legislature for the first time in decades have signaled that affirming reproductive rights will be one of their top priorities in 2023.
Abortion rights supporters in Vermont are planning to ask the legislature to enact shield laws to protect Vermont providers that perform abortion services for out-of-state travelers.
In Kentucky, Cameron downplayed the anti-abortion amendment's defeat in a post-election filing with the Supreme Court, saying the outcome “has no bearing on whether the court should create a Kentucky Roe v. Wade.”
“In short, because Kentucky voters chose to leave their Constitution as is, the constitutional text that the court must interpret to resolve this appeal is the same today as it was before" the vote, the Republican attorney general wrote.
But Overstreet, the University of Louisville student and abortion rights volunteer, said the voters' rejection of the Kentucky amendment spoke volumes about where the people stand.
“I have family from Appalachia, and I grew up in the city,” she said. “People really underestimate Kentucky. People think that Kentucky is regressive. They think that Kentuckians don’t believe in one another. But that’s just absolutely not true. Kentuckians want abortion access. And that’s what this amendment has shown us.”
