In a major victory for abortion rights groups, Kentucky voters rejected a proposal to revise the state constitution to make clear there is no protected right to abortion.
Unofficial election results from the Associated Press Wednesday morning showed voters narrowly defeated Amendment 2, a largely Republican-backed measure that sought to add these words to the Kentucky constitution: “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.”
As of 8:20 a.m. with an estimated 86% of votes counted, 52.5% of voters cast a “No” vote, compared to the 47.5% who supported changing the constitution.
In a conservative stronghold like the commonwealth, which swung Republican in 2020 presidential and Senate contests by 26 and 20 percentage points, respectively, the rejection of Amendment 2 is notable. Messaging from Protect Kentucky Access, the campaign that worked to defeat Amendment 2, centered on the loss of federal abortion protections and immediate activation of Kentucky’s near-total abortion ban in June, hoping to summon frustrated voters to ballot boxes.
Their tactic worked.
At Protect Kentucky Access’ campaign watch party in Louisville Tuesday night, Campaign Manager Rachel Sweet called the victory a “win against government overreach and interference in our medical decisions.”
Others declared it’s an affirmation of a reality some Democrats and moderate Republicans had sensed: that the state’s political party in power has overstepped on its regulation of abortion.
“Lawmakers went too far. They tried to take too much,” said Jackie McGranahan, policy strategist with the American Civil Liberties Union of Kentucky. “We stopped them.”
Defeat of Amendment 2 also potentially bodes well for the state’s two outpatient abortion clinics, whose lawsuit challenging the constitutionality of the trigger law is currently before the Kentucky Supreme Court.
After the near-total ban and a separate six-week ban immediately became enforceable this summer following the fall of Roe v. Wade, EMW Women’s Surgical Center and Planned Parenthood sued the state to overturn both laws. They argued that an individual’s right to the full spectrum of reproductive health care, which includes abortion, is protected under the Kentucky Constitution. Banning the procedure, or arbitrarily restricting access to abortion after a fetal heartbeat is detected around the six-week mark, violates an individual’s right to privacy and bodily autonomy, they argue.
Though the state’s near-total abortion ban is still in place, voters’ choice on Election Day to thwart the amendment leaves open the possibility for the high court’s justices to interpret a right to abortion within the state constitution. Oral arguments are scheduled to begin in that case November 15.
The defeat of Amendment 2 culminates a months-long, occasionally bitter slog from two campaigns pushing starkly different messages and varying amounts of misinformation and disinformation.
Yes For Life, the campaign pushing a “yes” vote, was a major contributor, telling the public in its TV ad and a series of individual endorsements that, “radical, out-of-state activists want to spend YOUR tax dollars on late-term abortions, even up to the moment of birth.”
Taxpayer-funded abortions are illegal under state law, and abortion “up to the moment of birth” is a misnomer. Any abortive procedure considered “late-term” is done for a medically-necessary reason, as the Herald-Leader has reported.
Yes For Life was financially buoyed by religiously-affiliated organizations, primarily the Kentucky Baptist Convention and the Catholic Conference of Kentucky. Its campaign messaging leaned heavily on religious rhetoric, the biblical immorality of elective abortion, and an expressed need to preserve the state’s “pro-life values and the previous lives of unborn Kentuckians,” as a way to appeal to the state’s vast population of people who identify as Christian.
Proponents of Yes For Life emphasized the importance of keeping regulatory power over the state’s abortion laws with the duly-elected lawmakers who craft those laws. In late October at a “Pro-life caucus” news conference, Rep. Nancy Tate, R-Brandenburg, said Amendment 2 “protects Kentucky voters’ self-determination to create their own laws,” and “prevents judges from inventing abortion rights in our constitution.”
Protect Kentucky Access, which raised upwards of $6 million in mostly out-of-state money — more than five-times as much as Yes For Life — aggressively needled voter outrage over Kentucky’s trigger law as a way to drum up opposition to Amendment 2, regularly conflating the two. The campaign was speculative in its television ads, highlighting potential realities a constitutional change could theoretically pave the way for, including one where the state’s trigger law contains no medical exceptions.
The vote no campaign’s messaging often incorrectly equated the statewide abortion ban with passage of Amendment 2, which would not have been an abortion ban. On its website, PKA says passage of Amendment 2 would “permanently ban all abortion, with no exceptions for rape, incest or a woman’s life.”
At the campaign’s celebration in Louisville, Sweet said Yes For Life continues to “mislead voters about what their true motives are,” which is to ban abortion without exceptions. The current trigger law includes exceptions for the life of the pregnant person, but there are no exceptions for rape, incest or fetal anomalies.
While PKA’s campaign messaging has also at times been misleading, both the ban and constitutional amendment are two sides of the same political coin. Both are products of bills passed by a Republican-controlled General Assembly, which has successfully eliminated access to comprehensive reproductive health care in Kentucky by passing more than a dozen laws to that end since 2016.
If Amendment 2 had passed, it would’ve made it harder to challenge the constitutionality of those abortion-related laws in court, since judges would not be able to interpret a right to abortion as existing within the state constitution, because the constitution would plainly state that right doesn’t exist.
Still, a constitutional change also would not have precluded lawmakers from rolling back abortion laws in the future. But by limiting the scope of judicial review through the amendment now — a step proponents of Yes For Life referred to as preventing “activist judges” from creating a “Kentucky version of Roe” — it would’ve solidified the current abortion-related laws and strengthened the Republican supermajority Legislature’s control over those laws.
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