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Louisville professor explains court ruling that reinstated Kentucky’s abortion ban

Sam Marcosson is a law professor at the University of Louisville.
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Sam Marcosson is a law professor at the University of Louisville.

Nearly all abortions in Kentucky are now banned after the state court of appeals overturned an injunction against two previously-blocked abortion laws this week.

The ruling is the latest development in an ongoing legal battle between the state’s abortion providers and Attorney General Daniel Cameron.

Following the U.S. Supreme Court ruling to overturn Roe v. Wade in June, Kentucky’s trigger law that banned nearly all abortions went into effect.

Planned Parenthood and the ACLU, on behalf of EMW Women’s Surgical Center challenged the trigger law, along with a separate six-week ban, in state court. 

Jefferson County Circuit Court Judge Mitch Perry granted a restraining order days later, which allowed abortions to resume. Cameron unsuccessfully appealed that ruling in both the state court of appeals and state supreme court.

Just under two weeks ago, Perry further blocked the laws with a temporary injunction, which was set to last for the duration of the case. 

Cameron again challenged the block. On Monday night, the court of appeals issued a ruling that allowed the state to enforce the abortion ban. 

The ACLU filed an appeal to the state supreme court Tuesday. A ruling on that could come within a few days. 

Sam Marcosson, a law professor at the University of Louisville, talked with WFPL News about why the court of appeals may have changed course in its decision to side with Cameron this time, and what may come next for abortion access in the commonwealth.

The interview has been lightly edited for clarity and length.

Reproductive rights groups have challenged three of Kentucky's abortion laws in recent months. House Bill 3 is still in federal court. Can you tell us about the laws affected by the most recent decision in state court?

Sam: Well, the laws are the trigger law, most importantly, which established that if the Supreme Court of the United States struck down Roe [v.] Wade, there would automatically be a ban on abortion at certain points. The General Assembly has been passing a number of laws that sort of interconnect with one another. One of those, and it went into effect when Roe was overturned, was a ban on abortion after six weeks of pregnancy, a time at which many women don't even yet know that they're pregnant.

Attorney General Daniel Cameron appealed the restraining order that blocked the two laws with the state court of appeals and supreme court. Both attempts failed. Two weeks ago, the judge who issued the restraining order granted a temporary injunction in the case. Can you explain how the injunction is different from the restraining order and why the court might have ruled in Cameron's favor this time?

Sam: A temporary restraining order applies only for a short period until a hearing on an injunction can be heard. A temporary injunction, on the other hand, lasts until the case is decided on the merits, which can often be months or even longer.

It's a much more significant step for a judge to enter a temporary injunction because that freezes everything in place until the case is resolved. A temporary restraining order is much more temporary. It is much harder to get that overturned on appeal, whereas a temporary injunction as we've seen in this case, while still difficult, can be more readily overturned.

Kentucky's two abortion providers immediately stopped those services when the ruling came down. Other nearby states like Indiana and Ohio have also taken steps to restrict abortions. What does this mean for people seeking care in the state and the region as a whole?

Sam: It means that for those who have the capacity, they're going to have to travel to a state which has availability of abortion. For many, that would be Illinois, for example. But for some women, that is a very, very difficult challenge. So for some women, it may mean the difference between being able to access abortion services and not being able to access them at all.

So how do you anticipate the case to play out from here? Kentuckians will vote this November on an amendment that would codify abortion restrictions in the state constitution. How could that impact this case? 

Sam: Putting aside the amendment for the moment, it will go up to the Kentucky Supreme Court, because the providers have already indicated that they are going to appeal the decision of the court of appeals. And if we stay without an injunction, that will mean that the case will have to be tried, reach an ultimate resolution, and then that would be appealed. So there's a long road ahead, either way.

Obviously, the amendment could change everything. If the voters choose to adopt this amendment and say that the constitution does not include a right to abortion, then the plaintiffs’ lawsuit is dead in its tracks. If, on the other hand, the amendment were to lose, it would give a powerful argument to the plaintiffs that, in fact, the voters have spoken, they do not want the constitution to be interpreted to say that there is no right to abortion. And it could lead the courts to feel more free to interpret the constitution in the way the plaintiffs want to include a right to abortion, so a lot will be on the line with the amendment.

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

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