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Abortion bans still pending before revamped Ky. Supreme Court

Abortion rights protesters in downtown Louisville on May 4, 2020.
Ryan Van Velzer
Abortion rights protesters in downtown Louisville on May 4, 2020.

Nearly two monthsafter the Kentucky Supreme Court heard arguments over the state’s near-total ban on abortion, justices still haven’t issued a ruling in the case. And with a new chief justice and two new members on the seven-person court following last year’s general election, there’s still no clarity over whether the temporary bans on abortion could be lifted or kept in place.

According to a court spokesperson, the new court can still rule on the case without scheduling a new round of oral arguments, though justices can still request additional arguments.

The court heard arguments last November on multiple challenges to the state’s 2019 trigger law, which outlaws abortions in all but life-threatening cases after Roe v. Wade was overturned by the U.S. Supreme Court, and a separate law that bans abortions after six weeks of pregnancy.

The ACLU sued to block the bans on behalf of the state’s two abortion providers, EMW Women’s Surgical Center and Planned Parenthood.

The providers and Kentucky Attorney General Daniel Cameron, who is defending the bans in court, are either mum on the issue, or aren’t sure what happens next.

Angela Cooper, communications director for the ACLU of Kentucky, which is representing the providers, said it’s unclear when a decision will come in.

“Our legal team continues to prepare to litigate the case as the case is ongoing. We really hoped to get a decision from the court before the new year. That didn’t happen so they could issue the decision at any time, or they could ask us to reargue in front of the new justices, that’s also a possibility,” she said.

Cameron did not respond to requests for comment.

Abortion rights advocates and providers filed the lawsuit last summer after the U.S. Supreme Court’s Dobbs decision allowed abortion bans to go into effect in states like Kentucky.

The challenge seeks to overturn Kentucky’s abortion bans by arguing there is a right to abortion under the state constitution.

Though a trial court initially blocked the bans while the lawsuit proceeded, abortion access has been almost totally cut off in Kentucky since August. That’s when the state Court of Appeals ruled the bans could be enforced while the legal challenges continue. The Kentucky Supreme Court later upheld that decision, and agreed to hear an appeal of the preliminary ruling.

Justices heard arguments in the case on Nov. 15, one week after Kentucky voters rejected a referendum to add anti-abortion language to the state constitution. The proposal 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.

Former Chief Justice John Minton’s chief of staff Katie Shepherd told the Lexington Herald Leader in October that the court couldn’t definitively say the case would be decided before the end of last year, but “it is always the intent that the Court that hears a case will decide that case.”

Northern Kentucky University constitutional law professor Kenneth Katkin said it’s unusual that the high court is taking a long time over a temporary injunction hearing regardless of how high profile the case.

“Time is of the essence. It is an emergency motion and every day that they don’t decide, that provides the possibility that there’s women in Kentucky who have a constitutional right to reproductive rights who are being denied that right. They haven’t said anything about it, and I would call this delay a dereliction of duty,” Katkin said.

New justices

The court that rules on the case will not be the same as the one that heard the case.

Since oral arguments over the abortion ban took place, Chief Justice John Minton and Justice Lisabeth Hughes have retired. They were replaced by two new associate justices, Angela McCormick Bisig and Kelly Thompson, who won their new jobs during last year’s general election.

Justice Laurance VanMeter, who was first elected in 2016 and previously served on the Court of Appeals for a decade, is the high court’s new chief justice.

Al Cross, a longtime journalist and director of the Institute for Rural Journalism and Community Issues, said the Supreme Court was already divided, but having two new members could make reaching a final ruling more complicated.

“In this case you have a very fractured court, a very important issue and two new justices,” he said “One or both of them might see a gap in the arguments or brief that they would like to see filled in another argument or oral briefing,” Cross said.

Former Justice Bill Cunningham, who served on the court from 2007 to 2019, said he was surprised that a decision had not been reached before the new justices were sworn in.

“We don’t get two new justices everyday, but it’s very unusual to get a rehearing or a delay on a temporary injunction case, because we’re not ruling on whether abortion is enshrined in the constitution. It’s a high profile case, but it didn’t need to take this much time,” he said.

“It does not take this long to resolve a temporary injunction matter, however high profile the case.”

Though the scope of the Supreme Court’s decision will only extend to whether Kentucky’s abortion bans should be enforced while the lawsuit takes place, the case will be the first time the court has weighed in on the issue in the wake of Dobbs. The larger question of whether Kentucky’s abortion bans are constitutional is still pending in Jefferson Circuit Court. That case still has to make its way through the judicial system.

Where abortion in Kentucky stands

It’s unclear how the court will rule,but during oral arguments, some justices grilled Kentucky Solicitor General Matt Kuhn, who defended the abortion ban.

Kuhn argued that the court should reject the challenge because abortion isn’t mentioned in the state constitution.

“[The constitution] 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.

Some justices voiced skepticism of Kuhn’s arguments, pointing out that the Kentucky Constitution was ratified in 1891, before women even had the right to vote.

If the court upholds the bans, Kentucky abortions would remain banned in all cases except to save the life of the pregnant person, and providing an unlawful abortion would remain a felony punishable by up to five years in prison.

But if the court were to rule in favor of EMW and Planned Parenthood, abortion access would be expanded by temporarily blocking the six-week ban and trigger law. But the state has other abortion bans on the books, including one forbidding the procedure after the 15th week of pregnancy.

Lawmakers passed the 15-week ban earlier last year, mirroring the Mississippi law that was upheld by the U.S. Supreme Court in its Dobbs decision.

Kentucky’s version of the 15-week ban was not challenged in state court, though a federal lawsuit over the measure is ongoing.

Republican lawmakers have said they are mulling new abortion legislation, and some have floated the possibility of creating exceptions to allow the procedure in cases of rape and incest.

In a statement, Republican Senate President Robert Stivers said it’s unclear whether lawmakers will try to pass more abortion restrictions. That will depend on how the court rules.

“What legislation may or may not be necessary is unclear until the court makes its decision,” Stivers said. “While nothing prevents individual lawmakers from introducing legislation, Senate leadership’s perspective is that the Kentucky Supreme Court must first speak on the matter. Kentuckians are overwhelmingly pro-life and the Kentucky General Assembly has been a leader in championing legislation to protect the life of the unborn.”

Divya is LPM's Race & Equity Reporter. Email Divya at dkarthikeyan@lpm.org.

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