With the Supreme Court’s overturn of Roe v. Wade on June 24, Kentucky’s strict “trigger ban” outlawing abortion (even in cases of rape and incest) went into effect.
The law, which only allows abortion in cases where a pregnant individual’s life is in jeopardy, also carries criminal penalties for people who perform abortions or provide medications to terminate a pregnancy.
Abortion providers and their advocates quickly launched a lawsuit against the ban and a separate law that barred abortions if cardiac activity was detected. On June 30, nearly a week after abortions ceased in Kentucky, a Louisville judge granted a temporary restraining order allowing abortions to restart. On July 6, a hearing will be held on whether the hold on the law will continue while the lawsuit is litigated.
After the Supreme Court’s decision upended nearly five decades of precedent, LEO Weekly took a look at some of the key issues surrounding Kentucky’s abortion ban.
Where do things stand now?
As of right now — Wednesday, July 6, 2022 at 10:30 a.m. — abortion is legal in Kentucky.
Last Thursday, a Louisville judge granted a temporary restraining order on the law, allowing Louisville’s two abortion providers to resume operations, at least for a few days.
On Wednesday there will be another hearing to decide whether the blockage of the law will continue while the lawsuit is litigated.
Last week, ACLU of Kentucky interim executive director Amber Duke told a press conference that the temporary hold was encouraging.
“It’s a really important victory for us to be able to get this restraining order,” she said. “In granting it, the court is saying that they believe our case has a good likelihood of success and that’s why the court is comfortable bringing the order.”
Meanwhile, Kentucky Attorney General Daniel Cameron, after failing to get the Kentucky Court of Appeals to reinstate the ban, is requesting that the Kentucky Supreme Court put the law back into place.
“There is no more important issue than protecting life, and we are urging the state’s highest court to consider our request for emergency relief,” said Cameron in a July 3 press release.
If the ban remains in place, where will the nearest place to get an abortion be?
According to the pro-abortion rights Guttmacher Institute, in the aftermath of the overturning of Roe v. Wade, all of Kentucky’s neighbors save for Illinois and Virginia are set to ban or severely restrict abortion.
Assuming Kentucky’s abortion ban goes forward and abortion bans are also in place in Ohio, Indiana and Tennessee, the closest place to Louisville to get an abortion will likely be southern Illinois.
Abortion providers in states where abortion is anticipated to remain legal are preparing for influxes.
Earlier this year, the Tennessee-based Choices abortion clinic announced it would be opening a branch in the southern Illinois city of Carbondale that would serve as “a lifeline for people in the southeast who need an abortion.” That clinic, scheduled to open in August, will be about three hours and 40 minutes from Louisville by car.
Illinois clinics just across the Mississippi River from St. Louis are a similar distance from Louisville.
With Kentucky’s only two abortion clinics located in Louisville — and far away from many Kentuckians — Kentucky Health Justice Network Executive Director Erin Smith said they were already used to help people access out-of-state abortion care.
“Kentucky has very few abortion clinics, which means that we’ve always had to schedule people out of state. It’s just going from some of our callers to all of our callers with the abortion ban and this trigger law,” they said.
The Kentucky Health Justice Network runs a support fund to assist Kentuckians who are seeking abortions. The group also provides transportation assistance for those in need.
Who is at risk for criminal charges?
Under Kentucky’s abortion law, those who perform abortions or provide medication to terminate pregnancy can be face criminal charges. Exempt from prosecution are pregnant individuals and medical providers who terminated a pregnancy to save the life of a mother.
If the law goes into place again, abortion clinics will be shut down; Realistically, the people most at risk for charges will be healthcare providers whose actions are second-guessed and people illicitly supplying abortion medications.
“With the way that the law is put in place, there’s a lot of discretion for prosecutors to prosecute whatever kinds of cases that they want pretty much,” said Michelle Lawson, an attorney in Hazard who is offering pro bono defense to people charged under Kentucky’s abortion law. “So if you have a more conservative prosecutor in the county, I can see them going forward with that.”
Coy Flowers, a Lexington OB/GYN who is the vice chair of the Kentucky chapter of the American College of Obstetricians and Gynecologists, worries the law will have a serious impact on healthcare workers and patients.
“Whenever there’s ambiguity in the law and it’s left open for interpretation by not only those who are directly involved in the care of the patient, but also every single prosecutor and sheriff in every single county in Kentucky, this places both providers and patients at extremely great risk,” he said. “No one who faces a medical crisis should have to fear that their particular physician is pausing or halting while in the midst of doing what that patient needs in order to resolve or avoid the threat of prosecution.”
University of Louisville law professor Jamie Abrams, whose research has focused on reproductive and birthing decision making, said she worries that the criminal penalties in Kentucky’s abortion law will see delays in medical care as physicians may take extra steps to make sure they are within the bounds of the law.
“The idea of doctors conferring with prosecutors or with lawyers before performing emergency care is unprecedented as healthcare in Kentucky or anywhere in America,” she said. “I think it’s less likely that there will be prosecutions, but more likely that there will be delays and that both the court and the prosecutors office will be a voice, if nothing more than a shadow looming over medical care for all pregnant women in Kentucky in ways that will complicate and harm care.”
Medical professionals frequently have to terminate pregnancies to save the life of mothers.
However, Flowers, the Lexington OB/GYN, warned that while healthcare providers might feel that a termination is necessary, those prosecuting might not.
About one in 50 pregnancies is an ectopic pregnancy — a pregnancy where a fertilized egg develops outside the uterus, resulting in a complication that requires termination. Other complications can require termination as well.
“The language in these laws are often incorrect and they’re not clinically meaningful to the real life situations that we face either in emergency rooms or in exam rooms or in labor deliveries every single day,” he said.
In a brief statement to LEO, Kentucky Medical Association director of communications Emily Schott said that Kentucky’s abortion law “raises a number of legal questions for Kentucky physicians” and that the association, which represents Kentucky doctors across the state, was working with legal experts to analyze the implications of the law.
Could the law be expanded?
While Kentucky’s abortion law carries criminal punishments for those who perform abortions or provide medication to end pregnancies, there are fears that abortion restrictions could be expanded.
According to reporting by the Washington Post, national anti-abortion groups are pushing for legislation in red states that would allow private citizens to sue people who help pregnant people get out-of-state abortions. The proposed legislation is modeled off of a law in Texas passed last year that allowed private citizens to sue others helping pregnant people get abortions.
Smith, the executive director of the Kentucky Health Justice Network, said the expansion of restrictions is “always a concern” in the Commonwealth.
“It seems like with the most extreme states that are coming out with the harshest laws — like Texas — when they come out with one, there are other states that will take that and try to emulate that within their own state,” they said. “And since we do have a [Republican] supermajority that actively tried to impeach a governor even when we’re going through natural disasters and states of emergency, it speaks numbers.”
Abrams, the UofL law school professor, said she is most worried that in vitro fertilization (IVF) will come under attack in places like Kentucky as a result of the Supreme Court’s overturning of Roe v. Wade.
“If personhood is framed as the moment of fertilization, that entire industry could be foreclosed in Kentucky,” she said.
Planned Parenthood Alliance Advocates Kentucky State Director Tamarra Wieder also fears more restrictions.
“If there’s anything we have seen from our legislature in Frankfort, it’s that they are obsessed with abortion, they are obsessed with control, they are obsessed with punishing those that are different,” she said.
Stephen Voss, an associate professor of political science at the University of Kentucky, said with time, the harsher provisions of Kentucky’s abortion law might be eased.
When the law was passed, he said, legislators could vote for it “expecting that it was more of a statement of values than a tangible policy change. But now it’s law.”
When lawmakers see the impact of the law “we might see efforts down the road to lighten some of the harsher provisions now that it’s actually in effect,” he added.
Under Kentucky’s current abortion law, there are no exceptions for incest or rape, nor are there exceptions for age of the pregnant individual or fetal viability.
However, further restrictions might come from the ballot box instead of the legislature.
In November, Kentucky voters will be presented with a ballot question that proposes adding language to the state’s constitution declaring that abortion is not a constitutionally protected right in the Commonwealth.
Will the abortion ban be enforced in Louisville?
Louisville mayor Greg Fischer, who said he was “absolutely disgusted” by the overturn of Roe v. Wade, told LEO Weekly that the city is consulting with attorneys to determine “the degree to which the city is required to enforce this law.”
Craig Greenberg, the Democratic Party’s mayoral nominee to replace Fischer, was quick to declare that, if elected, the Louisville Metro Police Department “will not be the enforcement arm” of Kentucky’s abortion ban.
But, in the end, it might not be up to the city to decide, but instead prosecutors and state agencies.
In a statement to LEO Weekly, Jefferson County Commonwealth’s Attorney Tom Wine said that the potential investigation and prosecution of abortion law violations could go forward even if LMPD is told not to pursue such cases.
While prosecutors across the country — including some in states that have or are likely to ban abortion — have signed onto a pledge not to prosecute abortion-related charges, none from Kentucky have signed on as June 29.
Wine said he would not be signing the letter, adding: “I swore to uphold the laws of the Commonwealth of Kentucky. I do not believe it wise to create summarily a class of felony offenses that we will not prosecute.”
However, in his statement, Wine pointed out that the Commonwealth’s Attorney’s office did not have investigators to review abortion cases and would have to rely on other agencies. He also said that proving an abortion was not medically necessary would require medical testimony “which will be expensive” at a time when his office’s budget is already stretched thin.
Wine added that the County Attorney’s office would be responsible for the initial charging of cases in district court.
Contacted by LEO, Jefferson County Attorney Mike O’Connell said he was “disheartened” by the Supreme Court’s decision and that women “deserve access to comprehensive health care, which includes their right to terminate a pregnancy.”
However, he added, “I am still evaluating my role in these matters following this upending of a half century of settled precedent. With the Jefferson Circuit Court’s temporary restraining order enjoining Kentucky’s ‘trigger law,’ abortion is currently permitted in Jefferson County.”
Kentucky Attorney General Daniel Cameron, a strong supporter of the abortion ban, has yet to publicly offer clarification on how the law would be enforced.
What are the ramifications for other issues like same-sex marriage?
The Supreme Court ruling has also sparked fears that other rights protected by the court could be lost.
In his concurring opinion, Justice Clarence Thomas raised the prospect that the overturning of Roe v. Wade could be a prelude to future reversals of landmark Supreme Court decisions.
“In future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell,” wrote Thomas in reference to cases that protected contraception, same-sex intercourse and gay marriage.
Overturns of those could have dramatic impacts in Kentucky, where a constitutional amendment added by a 2004 referendum defined marriage as between a man and a woman and where a same-sex sodomy law is still on the books.
Chris Hartman, executive director of the Louisville-based Fairness Campaign, said it’s important to stay vigilant about potential threats to the legality of gay marriage after the overturn of Roe v. Wade, but that he does not see such a threat as imminent.
The impracticality of actually implementing a national reversal on the protection of gay marriage could help protect it from those working against LGBTQ rights, he said.
“Imagine trying to unravel hundreds of thousands of legal marriages and property that’s entwined in that, benefits entwined in that, health insurance entwined in that,” he said. “It would also be a logistical nightmare for the government. And I think that the courts would likely take something like that into consideration.”
While less concerned about an overturn of gay marriage, Hartman said he continues to be worried about legislation targeting trans rights in Kentucky. •
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