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LISTEN: Ky. Supreme Court keeps abortion bans in place. What’s next?

Abortion rights protesters in downtown Louisville on May 4, 2022.
Ryan Van Velzer
Abortion rights protesters in downtown Louisville on May 4, 2022.

Abortions have been illegal in almost all cases in Kentucky for over seven months, and the state Supreme Court this week ruled that bans will remain in place while a lawsuit continues in Jefferson Circuit Court.

The majority opinion stated that Kentucky's two abortion providers lack the constitutional standing to challenge the laws on their patients' behalf, but that they do have standing to challenge the trigger ban on their own.

Now that the full merits of the case will be weighed in a trial court, reproductive rights advocates hope a judge will rule there are guarantees for abortion access under the state constitution.

That’s the main argument behind Planned Parenthood and ACLU’s lawsuit filed last summer, which maintains that the state’s “trigger law” and six-week ban on abortion violate patients’ right to privacy under the state constitution – even though it doesn’t explicitly mention abortion.

Supreme Court justices left the door open to weigh in on the issue further, saying in the 150-page opinion that this week’s ruling “does not in any way determine whether the Kentucky Constitution protects or does not protect the right to receive an abortion.”

Meanwhile, Kentucky voters appear to diverge from the Republican-led legislature’s policies that have eliminated access abortion in nearly all cases.

In November last year, voters rejected a ballot amendmentthat would add language to the state constitution saying that nothing in the document guarantees abortion access.

Republican leaders of the legislature have hinted they will consider exceptions to the state’s near-total ban on abortion. House Speaker David Osborne said in a statement that he expects bills to be filed “that will provide further exceptions” for abortion, though no Republican proposals have surfaced yet.

Capitol Reporter Divya Karthikeyan spoke to Sam Marcosson, a law professor at the University of Louisville, who broke down the ruling and talked about what it means for the future of reproductive rights in Kentucky.

This interview has been edited for length and clarity.

KARTHIKEYAN: Thank you so much for joining me Professor Marcosson. So the Kentucky Supreme Court heard arguments on whether to temporarily block the two abortion bans in the state over two months ago. And the Court issued its ruling this week. It would basically allow the trigger law and the six-week ban to remain in place. Can you break this ruling down for us and what the court is actually saying?

MARCOSSON: One of the interesting things about the decision is instead of looking at the factors that ordinarily courts apply to decide whether to issue and maintain a temporary injunction, the court decided the case based on standing, that the clinics could not assert the injury that is required to be able to sue in court that was suffered by the women who would be seeking abortions, and it was their rights that were at stake.

KARTHIKEYAN: What would it take to prove that these abortion bans are directly harming people?

MARCOSSON: So what the court in effect was saying was, if you want to maintain that claim as to a constitutional right to obtain an abortion, you don't have the right people before us to assert the right in the first place. The only people who can maintain that claim are the people who actually are suffering that injury. And that would be the women who are not able to obtain abortions because of this law. And no women who are in that position were among the plaintiffs who are bringing the lawsuit or seeking the injunction.

KARTHIKEYAN: So where it stands now is that the state Supreme Court is throwing it to a lower court to decide whether there's a right to an abortion in the Constitution at all. And in the legislature, Republican lawmakers said they've been waiting for this ruling to come down and that their future actions on abortion would depend on that ruling. Now that the ruling is out we're in session, what power or leeway exactly does this outcome give the legislature to pass more laws?

MARCOSSON: Well, it leaves the legislature free, for now at least, to continue to pass abortion restrictions. They can do what they want, because the Kentucky Supreme Court did not say that there is a right to abortion protected in the Kentucky constitution. That is one of the consequences of the court sidestepping the issue, because it doesn't give final clarity to the General Assembly or for that matter, to the voters on these issues. They will see this as a green light to go forward, until and unless a time arrives where the court does actually reach the issue.

KARTHIKEYAN: And as a legal battle over abortion rights continues to play out in the state and there's no end in sight yet, how will this continue to affect access to reproductive care in Kentucky?

MARCOSSON: So the real world consequences are, greater expense in order to obtain an abortion, or not being able to obtain it at all. If it's a woman who doesn't have the resources to be able to take those steps, and in cases of medical need, that they simply won't provide abortions until the woman is in such dire condition, that it's undeniable that her life is at stake. The rule of the day, or the bottom line conclusion is uncertainty, doubt. And that is not a positive for the potential of exercising the right to choose whether to have an abortion.

KARTHIKEYAN: Alright. Thank you so much for your time, Professor Marcosson.

We're re-imagining our politics podcast and we want to hear from you! Click here to tell us what you'd like to hear on "Kentucky Politics Distilled."

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

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