LEXINGTON, Ky. — For the first time in recent memory, Kentucky voters have a chance to weigh in on the future of abortion access in the state this November.
There are two constitutional amendment questions on the Nov. 8 ballot that require a “yes” or “no” vote. Both would give lawmakers more control in different ways.
Constitutional Amendment No. 1 — wordy and running almost the full length of the ballot sheet — will ask voters if they want to drop constitutional rules that end regular legislative sessions in early spring and allow lawmakers to call members back for 12 additional businesses days later in the year. Currently, the governor is the only person who can call a special session.
The second question, Constitutional Amendment No. 2, will ask voters if they want to change the wording of the Kentucky constitution to make clear there is no protected right to abortion. It’s the product of a Republican-backed 2021 law.
Here’s how the question will be worded: “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?”
If the amendment is passed and the constitution changed, it would not equal an abortion ban. But if Kentucky’s laws restricting abortion are legally challenged, courts could not interpret a right to abortion as existing within the constitution, because the amendment plainly states it is not a protected right. The General Assembly, then, would become the sole arbiter of state laws and regulations impacting abortion access.
In other words, if the “yes” side wins and the constitution is changed, there is “no legal recourse, no legal path to challenge the constitution,” said Western Kentucky University political science professor Saundra Ardrey said.
It is coincidental that the question of whether to revoke any right inherent in the constitution comes before voters now, when tensions over abortion access in Kentucky have reached a fever pitch, and as the Kentucky Supreme Court is scheduled to decide whether abortion is an inherent right protected by the state constitution.
“For Amendment 2 to fail clearly would do nothing to state law, because it means the constitution wouldn’t change,” said University of Kentucky political science professor Stephen Voss. “But it’s indirectly serving as a referendum that the Kentucky Supreme Court will be observing from voters” before they weigh in with their own decision.
How did we get here?
When Kentuckians file into voting booths in about three weeks, it will have been roughly four months since the U.S. Supreme Court struck down federal abortion protections and handed the regulatory reins to states.
Kentucky’s Republican-controlled General Assembly was poised to strike with its trigger law, passed in 2019 and signed into law by former Republican Gov. Matt Bevin. It bans all abortions except in cases where the life of the pregnant person is at risk in an effort to protect “unborn human beings.” There are no exceptions for rape, incest or fetal anomalies. Doctors who provide abortions outside this context face a Class D felony.
The trigger law, as well as a six-week ban on abortions — the fetal heartbeat law — immediately became enforceable by Republican Attorney General Daniel Cameron when the nation’s high court overturned Roe v. Wade in late June. Both laws were promptly challenged in court by Kentucky’s two outpatient abortion providers, Planned Parenthood and EMW Women’s Surgical Center.
The crux of their challenge hinges on the claim that access to the full spectrum of reproductive health care, which includes abortion, is a protected right under the Kentucky Constitution. Banning the procedure, or arbitrarily restricting it after a fetal heartbeat is detected around the six-week mark, violates an individual’s right to privacy and bodily autonomy, they argue.
A Jefferson County Circuit judge found legal merit in that argument in late July and temporarily blocked Cameron from enforcing either ban until the matter is resolved in court. “The fundamental right for a woman to control her own body, free from governmental interference, outweighs a state interest in potential fetal life before viability,” Jefferson Circuit Judge Mitch Perry wrote in his ruling.
A legal volley has ensued in the roughly two months since, and tensions over abortion access have hit a boiling point. In late July, Cameron, who is running for governor, asked higher courts for a second time to throw out Judge Perry’s order and allow him to enforce both bans. After an initial denial from both the Kentucky Court of Appeals and the state Supreme Court, the appeals court granted his second request in late July. Cameron expressed his thanks to the court for allowing him to continue to “vigorously defend the constitutionality of these protections for women and unborn children across the commonwealth.”
Kentucky’s abortion providers appealed that ruling to the Kentucky Supreme Court, whose justices are scheduled to hold oral arguments on the case beginning November 15, a week after the general election.
If the constitutional amendment passes, it will narrow, or potentially eliminate, state Supreme Court justices’ ability to read the Kentucky Constitution as containing a right to abortion.
Voter registration ‘tea leaves’
By Oct. 12, Protect Kentucky Access and Yes For Life — the two campaigns on either side of Constitutional Amendment No. 2 — had collectively raised more than $3.6 million.
The bulk of Yes For Life’s money has come from religiously-affiliated groups, like the Kentucky Baptist Convention and the Catholic Conference of Kentucky, which have fronted hundreds of thousands of dollars. But Protect Kentucky Access has raised close to five-times as much as its opponent group, raking in more than $3 million, compared with Yes for Life’s $620,000, according to Kentucky Registry of Election Finance filings.
PKA has major funding support from Planned Parenthood and the American Civil Liberties Union, and close to 90 people who list themselves as physicians have also donated nearly $53,000 to defeat the constitutional amendment.
Fundraising doesn’t necessarily signal traction among voters. Taking stock of voter registration numbers since abortion protections were overturned this summer, it’s less discernible how this ballot question will spur actual turnout.
In July and August, right after federal abortion protections were scrapped and Kentucky’s ban took effect, there was relatively no difference between the number of women and men registering to vote, nor was there any marked spike in overall registration numbers from the month before. In July, 3,212 women to 3,204 men registered to vote. More people registered in August, but the parity remained: 3,858 women to 3,823 men registered, according to State Board of Elections data.
That changed in September, when significantly more Kentucky women than men registered to vote, 6,432 women to 5,721 men.
Last month women outnumbered men by roughly six percentage points, bucking a trend of relative parity between the two groups so far this year.
Does that mean anything for the upcoming vote on Amendment 2? It depends on who you ask.
Secretary of State Michael Adams, an anti-abortion Republican, said that it’s hard to make much out of one month of a change in the data. And Adams said he predicts about 40% turnout statewide, which is on par for a midterm election.
“I know everybody kind of wants to read tea leaves on Amendment 2 after what happened in Kansas and how everyone got shocked by it. There might be a little something there, but to me for it to be considered significant it has to be around a 10 point difference and would need to be sustained over a period of time,” Adams said.
In Kansas, a major surge in women registering to vote foretold a similar amendment there losing with voters handily — by 18% in the conservative state. Protect Kentucky Access is managed by the same woman, Rachel Sweet, who led the effort against Kansas’ anti-abortion constitutional amendment.
A few caveats are important in understanding Kansas’ results relative to Kentucky, though:
— Kansas is ostensibly less committed to the GOP, the primary conservative party in American politics, swinging Republican by about 15 and 12 percentage points in 2020 presidential and Senate contests compared to Kentucky’s 26 and 20 percentage point GOP wins in those contests.
— Kentucky has an abortion ban currently in place — though the Kentucky Supreme Court could strike down parts or all of the law — whereas Kansas did not.
In Kansas, a spike in women registering foretold the amendment’s demise. The week after the U.S. Supreme Court overturned Roe v. Wade, women constituted more than 70% of newly registered voters there.
Professor Ardrey of WKU said that the bump in women registering to vote is consistent with what observers have seen in many other states. It’s been particularly noticeable among young and/or suburban white women, she said.
“In some places (abortion policy) took a little while to sort of settle in as ‘what does this all mean.’ You’re seeing more and more states with trigger bans limiting the right to reproductive freedom, so I think that’s impacted women, and they’re beginning to realize what that actually means,” she said.
Though the stakes are high, for many people in the voting booth, it’ll come down to comprehension. A lengthy first question will thwart many from reading either amendment, which may work in favor of groups trying to preserve abortion access, Ardrey said.
“We know that constitutional amendments are very difficult to explain to the average voter. Since it’s difficult, a lot of voters will simply vote ‘no,’ without fully reading the question,” she said. “They tend to vote no, because ‘no’ signals no change.”
A couple more reasons for the pro-abortion rights camp to have hope for the amendment’s failure: The enthusiasm gap between Republicans and Democrats, which has always been in favor of the GOP, is lessening, Ardrey said. And the GOP nationwide is relying much less on messaging surrounding abortion now that the courts system does not provide the baseline access that Roe v. Wade did.
More and more Kentucky voters are also opting to not align with either major party, a strange sign in a state with closed primaries where only registered Democrats or Republicans can vote in those primary contests. The rate of growth of Independents in the state, Adams said, is starting to become three or four times that of Republicans, which are outpacing Democrats and just overtook them as the most popular party in the state.
Ardrey added that, though likely, it’s not set in stone that more independents and more women necessarily benefits the pro-abortion rights camp. Voter registration data in Kentucky, for instance, does not give provide insight into what percentage of new voters registered to which political party
It’s also possible that more voters could be registering to vote out of frustration with inflation, though most research Ardrey has seen suggests it’s connected to the loss of abortion rights.
“We will see, I think, as we get closer to the deadline that more and more (men), as well as more and more women, will begin to register to vote,” she said. “Now what that means in terms of turnout, that’s a different story.”
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