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Ky. abortion clinics challenge post-Roe restrictions in state court

A woman dressed as a handmaid t an abortion rights rally in downtown Louisville following the U.S. Supreme Court decision that undercut abortion rights across the country.
A woman dressed as a handmaid t an abortion rights rally in downtown Louisville following the U.S. Supreme Court decision that undercut abortion rights across the country.

Abortion rights advocates filed a lawsuit Monday afternoon challenging Kentucky’s new restrictions on nearly all abortions. The plaintiffs, the state’s only two abortion clinics, say the near-total ban on abortion is illegal under the state constitution because it threatens Kentuckians’ lives, health and right to privacy and self-determination.

“Without the ability to decide whether to continue a pregnancy, Kentuckians will lose the right to make critical decisions about their health, bodies, lives and futures,” attorneys for the plaintiffs write in their complaint.

The plaintiffs are Planned Parenthood of Kentucky, EMW Women’s Surgical Center, and Dr. Ernest Marshall, an obstetrician-gynecologist who owns EMW. The ACLU of Kentucky is representing EMW and Marshall. 

The clinics are asking a Jefferson County Circuit Court to block the state from enforcing two abortion bans. One is the “trigger law,” which put a stop to nearly all abortions in the state after the United States Supreme Court overturned Roe. v. Wade on Friday. That decision removed federal protections for abortion access and granted states the ability to regulate abortions.

The clinics are also challenging a Kentucky ban on abortions after embryonic cardiac activity is detectable. That usually occurs around six weeks — before many people know they are pregnant.

The six-week ban is currently blocked in federal court, but attorneys say the Supreme Court’s recent ruling means the ban will soon take effect.

Attorneys for the clinics say the trigger law ban runs counter to the Commonwealth’s constitution, not only because it infringes on the right to privacy, bodily autonomy and self-determination, but also because it delegates legislative authority to a body other than the General Assembly: the U.S. Supreme Court.

Lawyers also say the trigger law is “unconstitutionally vague,” since it is not clear exactly when the ban takes effect. Kentucky Attorney General Daniel Cameron said the ban went into effect Friday, but some attorneys say it’s possible the ban would only go into effect once the Supreme Court transmits a certified copy of the decision, usually in mid-July.

The clinics stopped providing abortion services Friday, however, out of fear health care providers could be prosecuted under the new restrictions.

The clinics and their attorneys have joined abortion-rights advocates around the the country in taking their fight to state courts, after the Dobbs v. Jackson Women’s Health Organization decision struck down abortion protections at the federal level.

A Louisiana judge granted a temporary injunction Monday to abortion-rights activists who filed a similar lawsuit in that state. 

In a statement, Kentucky Attorney General Daniel Cameron rejected the clinics' arguments.

"There is no right to abortion contained in the Commonwealth’s Constitution—and we will stand up against any baseless claim to the contrary. I have always stood strong in defense of life, and I will continue to advocate for our laws, which protect pregnant women and unborn babies," Cameron wrote.

Anti-abortion activists were seeking to head off state protections for the procedure, even before the ruling. A referendum on November’s ballot would add explicit language to Kentucky’s constitution to say it does not protect the right to an abortion.

Jess Clark is LPMs Education and Learning Reporter. Email Jess at jclark@lpm.org.

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