Abortion access in Kentucky remained virtually shut off Thursday after the state's highest court refused to halt a near-total ban that has largely been in place since Roe v. Wade was overturned.
Kentucky's Supreme Court, which was weighing challenges to the state’s near-total ban and a separate one that outlaws abortion after the sixth week of pregnancy, sent the case back to a lower court for further consideration of constitutional issues related to the more restrictive ban.
The court weighed in on the issue after Kentucky voters last year rejected a ballot measure that would have denied any constitutional protections for abortion. The justices heard arguments in the case a week after the November midterm elections, and activists on both sides had anxiously awaited the ruling. The state's Republican-led Legislature passed both of those laws.
The justices ruled on narrow legal issues Thursday. They left unanswered the larger constitutional questions about whether access to abortion should be legal in the Bluegrass State.
“To be clear, this opinion does not in any way determine whether the Kentucky Constitution protects or does not protect the right to receive an abortion, as no appropriate party to raise that issue is before us,” Deputy Chief Justice Debra Hembree Lambert wrote. “Nothing in this opinion shall be construed to prevent an appropriate party from filing suit at a later date.”
Abortion rights groups responded that the fight is far from over.
“Even after Kentuckians overwhelmingly voted against an anti-abortion ballot measure, abortion remains banned in the state,” Planned Parenthood and the American Civil Liberties Union said in a statement. “We are extremely disappointed in today’s decision, but we will never give up the fight to restore bodily autonomy and reproductive freedom in Kentucky.”
Kentucky's Republican attorney general, Daniel Cameron, called the ruling a “significant victory,” and said his office will continue to defend laws that “stand up for the unborn.”
“We are very pleased that Kentucky’s high court has allowed these laws to remain in effect while the case proceeds in circuit court,” Cameron said in a statement.
The legal challenge brought by two Louisville abortion providers revolves around the state's near-total trigger law ban and six-week ban. The trigger law was passed in 2019 and took effect when the U.S. Supreme Court overturned Roe v. Wade. It bans abortions except when they’re carried out to save the life of the mother or to prevent disabling injury. It does not include exceptions for cases of rape or incest.
In July, a Louisville judge, Mitch Perry, halted enforcement of the bans because he found that they likely violated the state constitution’s rights to privacy and self-determination. He said it wasn’t the court’s role to determine whether the state constitution guarantees the right to abortion, but it is its role to decide whether the new bans violate constitutionally guaranteed freedoms.
But the state Court of Appeals reinstated enforcement of the bans and the state Supreme Court opted in August to keep them in place while it reviewed the case.
On Thursday, the high court ruled that the abortion providers, who challenged the two bans on the premise that they violate patients' constitutional rights, lacked the “third-party standing" to do so.
Lambert, though, wrote that the providers do have “first-party” constitutional standing to challenge the trigger ban, pointing to “financial harm” as sufficient grounds for such standing.
As a result, the justices sent that part of the case back to the circuit court in Louisville to review the plaintiffs' claims that the trigger ban violates the state constitution.
However, the abortion providers offered “no arguments concerning their own rights” in challenging the six-week ban, the court noted.
With Kentucky's near-total ban left intact, abortion rights groups said they would continue helping Kentuckians “get the care they need, including helping patients find care out of state.”
Thirteen states have current bans on abortion at all stages of pregnancy, including Wisconsin, where there’s a legal question over which law is in effect but where clinics have shut down. Bans and tight restrictions are currently on hold because of court action in at least six states.
Meanwhile, a Texas lawsuit poses a threat to the nationwide availability of medication-induced abortion, which now accounts for the majority of abortions in the U.S. The case filed by abortion rights opponents seeks to reverse Food and Drug Administration approval of mifepristone.
