LEXINGTON, Ky. — A Thursday morning news conference called by the General Assembly’s Pro-life caucus to “dispel misinformation” about an abortion amendment on the ballot in November contributed to the spread of more misinformation.
Standing in front of roughly 25 members of the General Assembly’s Pro-Life caucus in Frankfort, Republican Rep. Nancy Tate, caucus chair and abortion ban supporter, said a “massive misinformation campaign” run by opponents of Constitutional Amendment No. 2 is “scaring Kentucky’s women.”
Tate was referencing the campaign to defeat the amendment run by Protect Kentucky Access, a group that has raised more than $5.2 million in donations — $2.2 million of which has come in the last two weeks, according to campaign finance filings. That’s compared to the roughly $952,000 raised by the competing campaign, Yes For Life, which Tate and her caucus support.
Constitutional Amendment No. 2, which will appear on ballots statewide Nov. 8, asks voters a “yes” or “no” question: “Are you in favor of amending the Constitution of Kentucky by creating a new Section of the Constitution . . . to state as follows: to protect human life, nothing in this constitution shall be construed to secure or protect a right to abortion or require the funding of abortion?”
Protect Kentucky Access, on its website and in television ads, has mischaracterized the constitutional amendment as equivalent to an abortion ban. On its website, PKA says the amendment, “if approved by voters, will amend our state constitution to permanently ban all abortion with no exceptions for rape, incest, or a woman’s life.”
Tate called this claim “false and misleading.” Lead author of the omnibus anti-abortion law House Bill 3 during the 2022 regular session that further restricts, regulates and monitors abortive procedures, Tate insisted the amendment wouldn’t outlaw abortion in all cases. She pointed to the state’s trigger law, which includes exceptions for a pregnant person in cases of medical emergencies. There are no exceptions for pregnancy resulting from rape or incest.
Tate said PKA’s characterization of a ban without exceptions is “misrepresenting the intent of this amendment,” which is to “protect Kentucky voters’ self-determination to create their own laws: A ‘yes’ vote prevents judges from inventing abortion rights in our constitution (and) would essentially stop a state-level Roe v. Wade.”
It’s true that changing the constitution to explicitly remove abortion protections would not equal a ban on abortion; a near-total abortion ban already exists, as does a six-week ban. But it would make it harder to constitutionally challenge such a restriction in a court. Courts, in turn, would not be able to interpret a right to abortion as existing within the constitution, because the constitution will plainly state there is no right to abortion or the funding of abortion.
It’s also true that a constitutional change would not preclude lawmakers from further restricting or rolling back abortion laws in the future. But by limiting judicial oversight through the amendment, it will solidify the abortion ban currently in place, with full control falling to the Republican supermajority General Assembly — a legislative body that shows no signs of significantly rolling back abortion restrictions.
Tate defended the medical exceptions in Kentucky’s trigger law, saying she has “confidence, as a woman with three miscarriages, that there is no concern, from my perspective, about the language that we as lawmakers have enacted. There are provisions specifically stating in the current laws that the woman’s life will always be taken into consideration for physical health issues.”
The reality that those exceptions don’t in all cases protect the health of a pregnant person is “absolutely a scare tactic by donors from out of state in order to influence women in Kentucky,” Tate said.
But that statement is misleading. The vaguely worded exceptions in the trigger law are creating problems and confusion for physicians providing routine obstetric and gynecologic care, as the Lexington Herald-Leader has reported. Those concerns have been communicated to lawmakers a recently as last month, according to Dr. Jeffrey Goldberg, an gynecological oncologist in Louisville who serves as legislative advocacy chair for Kentucky’s section of the American College of Obstetricians and Gynecologists.
In September, Goldberg emailed lawmakers a list of “actual clinical challenges” and treatment “interference” his colleagues have faced since House Bill 3 and the abortion ban have been in effect. Those restrictions have “led to significant challenges in providing health care to women in Kentucky,” according to that correspondence, which was shared with the Herald-Leader.
The email includes a list of “serious and presumably unintended consequences” of these laws, ranging from treatment of ectopic pregnancies, to premature rupture of membranes (when the water breaks early). Ectopic pregnancies are when a fetus implants outside the uterus. It’s nonviable, but still may have a heartbeat. If premature rupture of membranes occurs before a fetus is viable outside the womb, Goldberg wrote, “standard management” is be to induce labor or otherwise evacuate the pregnancy, even if the fetus still has a heartbeat — procedures that are considered abortive.
“Failure to do so subjects the patient to a very high likelihood of intrauterine infection and sepsis; yet, it is open to subjective interpretation whether this risk meets the vague definition of ‘substantial risk of death’ which would constitute exception under the law,” Goldberg said.
Along with GOP Sen. Whitney Westerfield, Tate at the Thursday news conference also said it’s the intention of the opposition to use taxpayer money to fund abortions — an argument there’s no evidence for. This is a claim repeated in a Yes For Life television ad, which tells viewers, “radical, out-of-state activists want to spend YOUR tax dollars on late-term abortions, even up to the moment of birth.”
The use of public agency funds for abortions is already illegal in Kentucky, codified into law in Tate’s House Bill 3 passed this spring. A late-term abortion typically refers to an abortion at or after 21 weeks of pregnancy. Rarely, and largely only for medically-necessary reasons, are abortions provided later than that. The characterization of elective abortions as being allowed “up to the moment of birth” is a misnomer and inaccurate.
When asked by reporters about these points, Westerfield said, of supporters of abortion rights, “that’s exactly what they want, and without this (constitutional) protection in place, that’s the policy they’re going to fight for.”
Tate said national groups like Planned Parenthood and the American Civil Liberties Union are finding abortion care to be a “lucrative business.” If the constitution isn’t changed, she said it would “make Kentucky an abortion mecca for this region of the nation,” though she didn’t elaborate.
Kentucky has two outpatient abortion clinics. Last year, 4,441 abortions were provided in Kentucky, according to state data.
Planned Parenthood Great Northwest Hawai’i, Alaska, Indiana and Kentucky said, “There are no tax dollars funding abortion care in Kentucky. That’s just one of the many untrue statements the anti-abortion extremists in Frankfort are peddling.”
Tate and Westerfield said they don’t support exceptions for rape and incest, citing religiously held beliefs. “I don’t believe we have the right to kill an innocent life God created,” Westerfield said. “We are all created in God’s image,” Tate added.
In closing, Westerfield told voters, “if you don’t like the policies we enact, hold us accountable. Change your vote. Vote for somebody else. In the meantime, though, make sure that question lies with the policy makers in Kentucky and not judges.”
Parties who oppose Constitutional Amendment No. 2 were quick to criticize the news conference.
“Politicians in Frankfort believe they should have total control over personal medical decisions,” Protect Kentucky Access said in a statement. “We believe, and Kentuckians believe, that these complicated decisions should be between women, their families, their faith and their doctors.”
Kentucky House Democratic caucus leader Joni Jenkins blasted the pro-life caucus for what she called a “deliberate attempt to hide their own wildly inaccurate statements.”
“Those speaking today know there are no taxpayer-funded abortions in Kentucky, but they lie about it anyway,” Jenkins said. “They know there is no such thing as elective abortion up to birth . . . but they lie about it anyway. Women’s health care — all of it — is on the ballot on November 8, and that’s the truth.”
