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Ky. Supreme Court hears arguments over abortion ban

Counter-protestors hold signs in front of a rally encouraging voters to vote yes on Amendment 2, which would add a permanent abortion ban to Kentuckys state constitution, on the steps of the Kentucky State Capitol in Frankfort, Kentucky, on October 1, 2022. - Since the Supreme Court in June overturned the constitutional right to abortion, restoring states' ability to ban the procedure, the issue has become a major ballot question. Only four states have decided to hold referendums exclusively on abortion, decoupling the issue from platforms and political parties, and opening the door to citizens who are not very political to get involved in what is, for them, a matter of "values." (Photo by Stefani Reynolds / AFP) (Photo by STEFANI REYNOLDS/AFP via Getty Images)
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Counter-protestors hold signs in front of a rally encouraging voters to vote yes on Amendment 2, which would add a permanent abortion ban to Kentuckys state constitution, on the steps of the Kentucky State Capitol in Frankfort, Kentucky, on October 1, 2022. - Since the Supreme Court in June overturned the constitutional right to abortion, restoring states' ability to ban the procedure, the issue has become a major ballot question. Only four states have decided to hold referendums exclusively on abortion, decoupling the issue from platforms and political parties, and opening the door to citizens who are not very political to get involved in what is, for them, a matter of

Continued enforcement of Kentucky’s near-total ban on abortion now hangs in the balance of the state Supreme Court.

On Tuesday, the high court heard arguments over thestate’s “trigger law,” which outlaws abortion except in life-threatening cases, and a separate six-week ban.

The American Civil Liberties Union and the state’s two abortion providers, EMW Women’s Surgical Center and Planned Parenthood, filed the lawsuit this summer, after the U.S. Supreme Court’s Dobbs decision allowed abortion bans in states like Kentucky go into effect.

Abortion rights advocates say the bans violate patients' right to privacy under the state constitution.

Heather Gatnarek, an attorney with the ACLU, argued against the bans before the Supreme Court on Tuesday, saying lawmakers are interfering with patients’ ability to make medical decisions with their doctors.

“Doctors should not be placed into a situation where they are left to watch their patient deteriorate before they meet one of these very narrow exceptions," Gatnarek said.

Last week, Kentucky voters rejected a referendum to add anti-abortion language to the state constitution. The amendment would have made it harder for the reproductive rights advocates’ case, which is seeking to enshrine abortion rights under the state’s fundamental legal document.

On Tuesday, justices grilled Kentucky Solicitor General Matt Kuhn about the vote. He’s the attorney general’s lawyer who defended the state’s abortion ban during arguments.

"I'm not telling you to ignore it happened, but it didn't change the language of the constitution,” Kuhn said. “The court has got to have historical evidence that there is constitutional basis."

Kuhn argued the state constitution is neutral on the issue of abortion.

“It is not pro-choice or pro-life, so the question must be left to the General Assembly. That Kentuckian who wants abortion rights should pick up the phone and call their assembly member," he said.

Justice Lisbeth Hughes called the ballot initiative Kentuckians voted on “the purest form of democracy.” She pointed out that women didn’t have the right to vote and weren’t involved when the Kentucky Constitution was ratified at the end of the 19th Century.

“Women were not considered,” Hughes said. “So I have some questions about the necessity of grounding our decision in 2022 in what occurred in 1890,” she said.

The ban has created confusion for doctors treating miscarriages and complicated pregnancies. The Attorney General Cameron recently issued an advisory opinion attempting to clarify the scope of Kentucky’s bans, but justices repeatedly cited the murkiness around exceptions during Tuesday’s hearing.

Justice Michelle Keller said the bans have created a confusing landscape for pregnant people and doctors.

"It's not safe or healthy for a 10-year-old to carry a child. The constitution talks about the right to self-determination. Doctors don't know what to do in the E.R. when faced with this. Doctors have to call the attorney general to find out what to do?” Keller asked.

ACLU attorney Gatnarek said an injunction would be required even if the bans included exceptions for rape and incest. “Pregnancy is a complicated mental experience, and doctors won't be able to know what the full risks are for a patient early on," Gatnarek said.

“Because the right to abortion exists within the right to privacy and self-determination, the court has to consider whether the General Assembly has a compelling enough interest. At what point does the state's interest outweigh the public's interest in abortion rights?” Gatnarek said.

This story has been updated.

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Ryland Barton is the Managing Editor for Collaboratives. Email Ryland at rbarton@lpm.org.