This November, Kentuckians will vote on a measure that would make sure abortion rights aren’t protected under the state constitution.
And as abortion rights advocates sue in state court to try and block restrictions, the proposed amendment looms as a roadblock for those seeking to restore access to abortions in the state.
Almost all legal abortions are now effectively banned in Kentucky after the U.S. Supreme Court ended federal abortion protections and gave states the power to limit or ban the procedure.
But under the proposed amendment to the Kentucky Constitution, voters will weigh in on adding language that states “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.”
University of Louisville Law professor Russell Weaver says if the amendment succeeds, reproductive rights wouldn’t be restored in Kentucky unless Congress takes action or the Supreme Court issues a new ruling, which he says “could take generations.
“What the Supreme Court has effectively said is that this issue returns to the state legislators,” Weaver said. “If this amendment passes, there are really all sorts of questions that could come up after this. Can they prohibit women from going out of state to get an abortion? Can they make that a crime to do that? Can they make it a crime to assist or facilitate a woman leaving the state to get an abortion? Can they levy restrictions on in-vitro fertilization procedures?”
The measure passed the Republican-dominated legislature in 2021, but needs to be approved by a majority of Kentucky voters on Election Day to be added to the Kentucky Constitution.
A "yes" vote supports amending the constitution to state that nothing in the document creates a right to abortion or requires government funding for abortion.
Kentucky already has a trigger law in effect, which automatically banned abortion in the state once Roe v. Wade was overturned. The measure still allows abortions if the life of the pregnant woman is at risk, but doesn’t provide exceptions in cases of rape and incest.
If the amendment passes, Kentucky’s abortion bans will proceed and state courts will be prevented from revisiting the issue.
Tamara Wieder, Kentucky director for Planned Parenthood Alliance Advocates, says the amendment would block all pathways for advocates to challenge abortion bans, and open up the possibility for more extreme restrictions.
“Voting yes on this amendment would actually mean no exemptions for any abortions in the Commonwealth,” Wieder said. “When you put extreme measures like this in place you take doctors who have to make decisions in a split moment out of the equation, and you put it into the hands of lawyers."
According to Northern Kentucky University law professor Kenneth Katkin, organizations helping women get abortions would have few options.
“They can organize transportation for women to leave the state to get abortions. They can engage in educational outreach, to let women in Kentucky know about the out of state options that they have. They can continue to promote contraception and to provide it, but that’s probably all there is,” Katkin said.
Addia Wuchner, executive director of Kentucky Right to Life Association and a former Republican lawmaker, said the amendment would curb “judicial activism” and leave the issue to lawmakers.
“We have all the laws restricting abortion in place. This will prevent attempted constitutional challenges and make sure that the lawmakers are making the laws, not the judges and making interpretations,” she said.
Wuchner said she doubts lawmakers would create restrictions for people who cross state lines to access abortion, but enforcing current abortion restrictions would be a priority.
Earlier this year, the Republican-led legislature passed House Bill 3, an omnibus abortion bill that banned mailing abortion medication, created more restrictions for minors accessing abortions and further regulated providers.
Wuchner called the recent Supreme Court ruling “an opportunity.”
“We will continue as an organization to work to prevent mail-order abortions coming in as a state which are already a part of House Bill 3. We'll continue to work and advocate and educate women on the risky business of do-it-yourself at-home abortions coming in from the mail,” Wuchner said.
If the amendment doesn’t pass, U of L Law Professor Weaver said lawsuits will continue, but courts and lawmakers could think twice about ruling in favor of further restrictions in the future.
“In other words, if the legislature sees a ‘no’ vote by the population of Kentucky, the legislature might say we didn't realize there were this many people that favored the right to have an abortion. So it might influence the legislature and might influence the court. But we've just got a lot of unanswered questions at this point,” he said.
This story has been updated.
