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Judge considers challenge to Ky.’s abortion ban

062422_Abortion Rally_Federal Courthouse_protester
Protesters at an abortion rights rally in downtown Louisville following the U.S. Supreme Court decision in June to overturn Roe v. Wade.

A Jefferson County Judge is expected to rule by Thursday on a restraining order that could restore abortions in Kentucky this week.

Jefferson County Circuit Court Chief Judge Mitch Perry heard arguments Wednesday in a case brought by Planned Parenthood and the ACLU Monday against the state’s trigger ban, which halted nearly all abortions as soon the U.S. Supreme Court ruled Friday to overturn the half-century precedent set forth in Roe v. Wade

https://wfpl.org/after-dobbs-decision-nearly-all-abortions-now-illegal-in-kentucky/>

Perry says he will decide whether to issue the restraining order by Thursday.

“I'm glad that the judge is taking his time with this,” Heather Gatnarek, an ACLU attorney said following Wednesday’s hearing. 

“But of course, we know that there's urgency to this matter. And he recognized that from the bench, he knows that patients are waiting to access this care. They're either going to be forced to carry pregnancies to term against their will or go out of state to access abortions.”

The ACLU said when the Supreme Court ruling came down Friday, their client, EMW Women’s Surgical Center, had around 15 patients in the building awaiting abortions. 

Those were canceled, and according to an affidavit from EMW’s owner entered into the court record, the clinic has turned away almost 200 people since then who were seeking abortions. 

“We have irreparable harm here,” Gatnarek said in court. 

Plaintiffs say the state’s constitution allows for abortions. They filed the lawsuit Monday in hopes of restoring abortion access in the state, challenging both the trigger ban and a six-week ban, passed in 2019, that’s been blocked in federal court. 

Attorney General Daniel Cameron responded to the suit, saying Kentucky’s constitution does not afford protection for that aspect of health care. 

In court Wednesday, Kentucky Assistant Deputy Attorney General Christopher Thacker argued that people who are seeking abortions are not the parties in this case, one reason he says the judge should not grant the restraining order.

“None of these parties could possibly possess the right to an abortion,” he said. Gatnarek, with the ACLU, argued it’s the providers who would be charged with a felony under the trigger law for providing them. 

Addia Wuchner, director of Kentucky Right to Life, and David Walls, director at The Family Foundation in Kentucky, attended the hearing. They said afterward that even if the judge rules to block the law, the fight is not over. 

“As the Supreme Court just said, this is an issue that should be decided by the people in their states through their elected representatives,” Walls said. “In this case, it's the General Assembly, and the General Assembly has emphatically [spoken], as Kentuckians have [spoken] through them, that they want to see unborn lives protected.”

The parties will meet again July 6 and present evidence for the judge to consider a temporary injunction. If that’s granted, it would last for the duration of the case. 

In November, Kentucky residents will also vote on a constitutional amendment that would explicitly state nothing in that constitution protects abortions or funding for them.

Attorney General Cameron also filed a request Tuesday in a separate federal legal challenge to House Bill 3, the omnibus bill that the legislature passed in April. That law has been partially blocked for months. Cameron asked the judge to dismiss the preliminary injunction and declare the law constitutional, based on the Supreme Court ruling in Dobbs v. Jackson Women's Health Organization last week. 

This story has been updated. 

Aprile Rickert is LPM's Southern Indiana reporter. Email Aprile at arickert@lpm.org.