Abortion remains banned in Kentucky while Supreme Court reviews disputes in case

·6 min read

Abortion access remains blocked in Kentucky while the state Supreme Court decides what to do about a dispute over a legal challenge to laws that ban abortion.

On Thursday, the state's highest court in an order declined to reverse a state Court of Appeals judge who had allowed enforcement of two controversial laws that ban nearly all abortions in Kentucky while the dispute is pending.

In splintered decision, five of the court's seven justices concurred with the order and two dissented −but two justices who concurred provided a separate opinion that agreed with the outcome but disputed the legal rationale.

Chief Justice John D. Minton Jr. and Deputy Chief Justice Lisabeth Hughes, both of whom are retiring this year, said in a separate opinion that appeals Judge Larry E. Thompson erred in reinstating the ban and said abortion access should continue while the case is pending.

"This case raises serious and important issues involving access to abortion and (challengers) make a compelling argument that women may suffer irreparable and permanent harm absent emergency relief from this court," said the dissent written by Minton.

"It is difficult to comprehend a more important or serious legal issue than access to abortion in the commonwealth," it added.

The court said it will take up issues raised by parties in the case at a hearing Nov. 15 including whether to lift the ban on abortion until the legal challenge, which is in Jefferson Circuit Court, is resolved.

That comes a week after the Nov. 8 general election at which voters will be asked to decide on a ballot measure declaring the state constitution contains no right to abortion, which would put an end to the current legal challenge if approved.

Justice Michelle Keller noted in her separate opinion the hearing would come after the election.

"We look forward to that expression of the will of the commonwealth," Keller's opinion said.

Keller's opinion disagreed with the reasoning but agreed with the outcome in the interest of an expedient resolution of the matter by the Supreme Court, instead of allowing the Appeals Court to first review the dispute.

But Keller urged a swift resolution.

"Recognizing that matters of life, death and health are at stake, time is of the essence," her opinion said.

Justices Robert Conley, Debra Hembree Lambert, Laurance VanMeter, Christopher Shea Nickell and Keller agreed with the majority opinion and order, with Nickell joining Keller's separate opinion.

The decision was promptly denounced by Kentucky's two abortion providers, Planned Parenthood and EMW Women's Surgical Center, which filed the legal challenge to state laws banning nearly all abortions. The American Civil Liberties Union of Kentucky, which represents EMW, joined the statement.

"Make no mistake: abortion bans result in tragic health outcomes and are a form of control over our bodies," it said. "Despite this setback, the fight continues. We will proceed with our case to restore and protect reproductive freedom in Kentucky. Politicians and the government should never have the authority to force a person to remain pregnant against their will.”

But Kentucky Right to Life, which opposes abortion, was "ecstatic" with the decision, Executive Director Addia Wuchner said in a news release.

"This means that babies and mothers are safe from abortions in Kentucky for now," Wuchner said, adding that groups who support the constitutional amendment on abortion will continue to promote its passage to "stop the radical abortion agenda in our state."

Kentucky Attorney General Daniel Cameron, a Republican who is running for governor, is seeking to enforce the abortion laws. On Twitter, Cameron praised the decision.

"We are pleased with this victory for life and the rule of law and will continue to prepare for the arguments the court has scheduled," his tweet said.

But Gov. Andy Beshear, a Democrat, denounced the decision at a news conference Thursday.

"I think the Kentucky Supreme Court has left in place one of of the most extremist laws across the United States," Beshear said. "It bans abortion for everyone, meaning that victims of rape and incest have absolutely no options and have to potentially carry their rapist's child.

"I think that's wrong and I think the majority of Kentuckians agree with me."

Thursday's decision follows more than a month of frenetic legal activity in which Kentuckians saw abortion banned after the U.S. Supreme Court struck down the federal right to it on June 24, briefly reinstated after a state court legal challenge, and then banned it again.

For subscribers:Author of Kentucky's abortion ban is making a partisan bid for Supreme Court seat

The case landed before the state's high court after lawyers for Kentucky's two abortion providers, seeking to reinstate abortion services, and Cameron, seeking to block them, appealed for review of developments in the lawsuit pending in Jefferson Circuit Court.

Kentucky is among multiple states where abortion rights advocates are arguing state constitutions provide a right to abortion following the Supreme Court's decision to strike down Roe v. Wade, which sent the matter back to states to regulate.

The Kentucky Supreme Court, shown at a hearing last year over the governor's emergency authority.
The Kentucky Supreme Court, shown at a hearing last year over the governor's emergency authority.

Abortions have not been available in Kentucky since Aug. 1, when a state appeals judge reinstated a ban temporarily lifted about a month earlier by a Jefferson circuit judge amid a legal challenge filed by Planned Parenthood and EMW, both in Louisville.

In the lawsuit, they argue that Kentucky's constitution provides a right to abortion and are asking the judge to strike down the two laws that ban almost all abortions.

One, the state's "trigger law" automatically banned abortion once the U.S. Supreme Court struck down Roe v. Wade, the 1973 case establishing it as a constitutional right. The second law bans abortions after about six weeks of pregnancy, often before people realize they are pregnant.

Neither provides any exception for rape or incest, and both permit abortion only to save the life of the patient or prevent disabling injury.

For subscribersThe inside story of how President Biden's plan to seat an anti-abortion judge fell apart

Cameron is asking the courts to allow enforcement of the laws, which he says were duly enacted by the General Assembly.

Jefferson Circuit Judge Mitch Perry issued a temporary restraining order blocking enforcement of the two laws on June 30, which allowed the two clinics, both in Louisville, to resume abortion services. He extended his order through a temporary injunction on July 22, finding there appeared to be significant constitutional questions about the laws.

But following an appeal by Cameron, Thompson, with the state appeals court, reinstated the ban Aug. 1.

Lawyers for the abortion providers then went to the Supreme Court, asking it to overrule Thompson so that abortion services may resume. Cameron had asked the high court to keep the ban in place and decide other matters of dispute in the case.

Minton and Hughes, in the dissent, said the Supreme Court should have kept Perry's injunction in place "pending final resolution of this litigation or an intervening change in law."

Both sides have asked the high court to take over the dispute to get a swifter resolution.

Contact reporter Deborah Yetter at dyetter@courier-journal.com or on Twitter at @d_yetter.

This article originally appeared on Louisville Courier Journal: Kentucky abortion: Supreme Court not to lift ban, will review case