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Here’s where abortion legislation and lawsuits in Kentucky and Indiana stand

A sign reads "Abortion is Health care" at a rally in Indianapolis.
Aprile Rickert
/
LPM
Lawsuits challenging Kentucky and Indiana's respective, near-total abortion bans are still making their way through court.

Abortion is still legal in Indiana but almost totally outlawed in Kentucky while lawsuits challenging the states’ abortion bans make their way through court.

After the U.S. Supreme Court cleared the way for Kentucky to almost completely outlaw abortion last year, there was plenty of speculation about what the Republican-run state Legislature might pursue next.

Ultimately, though, the Legislature wrapped up its annual lawmaking session last week without passing any new abortion laws.

Over in Indiana, the state legislative session runs through the end of April. But so far, lawmakers there haven’t passed any more abortion laws either. They already passed a major ban last August, making Indiana’s Legislature the first to approve new abortion restrictions after the Supreme Court overturned its 1973 Roe v. Wade ruling.

Meanwhile, lawsuits challenging abortion restrictions in both states are still making their way through court.

Kentucky Legislature quiet on the abortion front

The Kentucky Senate’s Republican leadership told LPM News their caucus remains “committed to protecting the rights of unborn children.”

But they said in a statement that the Legislature focused its efforts on other matters this year because the state’s near-total abortion ban is still being challenged in court.

Kentucky lawmakers also didn’t pass any measures that would provide additional financial support specifically to new parents.

However, the Senate leadership noted they passed “a number of bills that improve the health of Kentucky residents in many different ways,” including a law that legalizes medical marijuana.

They also cited Senate Bill 150 among that list of laws. It bans gender-affirming medical care for transgender kids, even though major medical associations and several Kentucky doctors say such care can greatly improve trans patients’ mental health and shouldn’t be prohibited.

Indiana’s Legislature recently passed its own ban on gender-affirming medical care for trans youth, which Republican Gov. Eric Holcomb signed into law Wednesday.

Tamarra Wieder, state director for Planned Parenthood Alliance Advocates Kentucky, said both legislatures have taken similar paths by pursuing “coordinated attacks on trans rights” while refraining from passing any new abortion legislation as lawsuits over their existing bans continue.

She also criticized the Kentucky Legislature’s Republican supermajorities for refusing to add exceptions to their abortion ban this year. Right now abortion is allowed only if the pregnant patient faces a life-threatening health risk.

“Kentuckians don't have any access to abortion care for rape, incest, fetal anomaly. And the ‘life of the mother’ exceptions are so very narrow and limited. But there were no actions taken,” she said. “And I think that that really speaks highly to the fact that it's not to the supermajorities’ values or their interests.”

The Senate GOP leadership told LPM News the new legislation they passed this year that’s “tied most closely to resources for new parents” is Senate Bill 135, which addresses pregnancy-related mental health conditions.

It directs the Kentucky Cabinet for Health and Family Services to:

  • Make a clinical assessment tool for detecting symptoms of conditions like postpartum depression publicly available.
  • Post information about perinatal mental health disorders online.
  • Convene a panel of experts to examine how to improve the mental health care patients receive right before and after giving birth.

The law’s lead sponsor, Republican Sen. Shelley Funke Frommeyer of Alexandria, said pregnancy involves a range of emotions, and it can include mental strain and postpartum depression.
“Yes, we want you to keep your baby,” she said. “But we also want to address that mentally, you need some help. You need some reinforcements.”

While lawmakers did not address abortion directly this session, Funke Frommeyer said she sees the laws they did pass as an interconnected effort to support Kentuckians, including addressing underlying issues that might prompt someone to consider an abortion.

For example, she said they approved legislation to provide better resources for people struggling with mental health and substance use disorder.

“I feel so convicted about a holistic health revolution in Kentucky,” she said.

LPM News requested but did not receive a comment from the Kentucky House’s Republican leadership.

Where the lawsuits stand in Indiana and Kentucky

Abortion providers are pursuing lawsuits in each state over their near-total bans. Both cases are still making their way through court.

In Kentucky, the state Supreme Court decided in February that the commonwealth’s trigger law prohibiting almost all abortion and its ban on abortion after about six weeks of pregnancy can stay in effect for now.

The court’s justices also ruled that the abortion providers that filed the lawsuit lack legal standing to pursue certain aspects of this lawsuit.

It sent the case back down to Jefferson Circuit Court for further consideration.

Planned Parenthood is one of the plaintiffs. A spokesperson told LPM News this week that they potentially could amend their legal complaint and are reviewing all options.

Indiana’s near-total abortion ban is temporarily blocked by court orders, so abortion is still legal up until about 22 weeks of pregnancy.

A lawsuit by Planned Parenthood and other abortion providers is currently before the Indiana Supreme Court.

Kentucky and Indiana’s abortion laws also face separate, ongoing lawsuits that claim they violate people’s religious freedom.

Three Jewish women in Louisville filed one of those, and they also claim Kentucky’s laws are overly vague. Their lawsuit says that has made them avoid pursuing new pregnancies, especially through in-vitro fertilization.

Their attorneys, Aaron Kemper and Ben Potash, told LPM News they thought lawmakers might pass legislation that would address their legal concerns during the 2023 session, especially concerning IVF. But that didn’t happen.

“You know now that the session is over, though, we know that the legislature isn’t going to fix it this year,” Kemper said.

This week, they filed a new request in their case. They’re asking a judge to move forward with a ruling because they say the facts of the situation are not in dispute — only the legality of the state’s abortion laws are.

“We are going after the entire body of abortion law in Kentucky,” Potash said. “Eighty-three pages of nonsensical, incoherent laws passed by countless legislatures who never had the intention that these laws would be enforced because when they passed these laws, Roe v. Wade was getting in the way of [them].”

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