Republican lawmaker files bill to add rape, incest exceptions to Kentucky abortion ban

A Louisville Republican has filed a bill to exempt victims of rape and incest, as well as women with nonviable pregnancies, from the state’s near-total ban on abortion.

Rep. Ken Fleming, R-Louisville, filed House Bill 711 on Monday.

While a bill to this end has already been filed this session — Hadley’s Law from Senate Minority Whip David Yates, D-Louisville — Fleming’s bill is the first filed by a Republican this legislative session.

Under Fleming’s bill, a person who is made pregnant through rape or incest could lawfully get an abortion if it’s provided “no later than six weeks” into pregnancy.

The bill also permits a pregnant person to legally get an abortion if they experience an “incomplete miscarriage,” have an ectopic pregnancy (when a fetus develops outside the uterus), or if their pregnancy is diagnosed with a “lethal fetal anomaly,” meaning the fetus won’t survive after birth.

Fleming cited being a father of two daughters as a partial reason for filing the measure.

“As a father of two daughters, I have always supported them financially, emotionally, and especially spiritually,” he said in a statement after the bill was filed. “We all encounter difficult heart-wrenching decisions in life. With them on my mind and in my heart, exceptions for life-saving measures for the mother and in cases involving rape or incest should be included in our state’s abortion law.”

Abortion has been largely illegal in Kentucky since June 2022, when the U.S. Supreme Court overturned Roe v. Wade, locking the state’s trigger law into place. The trigger law bans abortion unless the medical procedure is “necessary to prevent the death or substantial risk of death . . . or to prevent the serious permanent impairment of a life-sustaining organ of a pregnant women,” according to the language of the bill, which was passed in 2019.

A separate six-week ban, or fetal heartbeat law, also took effect when Roe fell. It bans the medical procedure after fetal cardiac activity is first detected, usually around the sixth week of pregnancy.

Neither law includes exceptions for pregnancy cause by rape or incest, or if a pregnancy is diagnosed with a fatal fetal anomaly that is incompatible with life. Fleming’s bill would codify these exceptions, restoring some abortion access statewide.

As the Herald-Leader previously reported, the lack of exceptions in Kentucky’s current abortion bans have forced pregnant women who need medically-recommended terminations — like those carrying a fetus with anencephaly, where the fetal brain and skull do not fully develop — to seek care outside of the commonwealth.

Democratic Gov. Andy Beshear messaged against the state’s ban on abortion throughout his successful re-election campaign. One particular television advertisement from the Beshear campaign, featuring sexual abuse survivor Hadley Duvall recalling her own rape as a child at the hands of her stepfather, aired for several weeks. Yates’ exceptions bill is named for Duvall.

Public opinion seems to signal that most Kentuckians think the state’s restrictive abortion bans are too severe.

In November 2022, residents defeated a Republican-backed change to the state constitution that would’ve made clear it did not contain inherent abortion access protections. Had the constitutional amendment passed, it would’ve effectively barred courts’ ability to interpret the constitution as containing these protections, making it even more difficult to legally challenge Kentucky’s abortion bans.

Leading up to the November 2023 election, ahead of Beshear’s re-election, an Emerson College Polling survey of 1,000 likely voters — Republicans and Democrats — found a majority did not support the current ban’s lack of exceptions.

Respondents were asked, “Do you support or oppose Kentucky’s current laws that ban abortion in nearly all cases, with no exceptions for rape or incest?” 54.9% of those surveyed said no, they opposed the current law. Just under 30% — 28.4% — said they supported it, while a shade under 17% said they were “unsure.”

Fleming’s House District 48 is politically purple. Having first won the district in 2016, he lost by a narrow margin in 2018 and then won by a similarly slim margin in 2020; in 2022, he won re-election by more than eight percentage points.

The only other exceptions bill filed by a Republican since abortion was outlawed was filed in 2023 by Rep. Jason Nemes, the majority whip. His bill did not receive so much as a committee assignment, let alone a vote.

As for caucus support of Fleming’s exception bill, leadership continues to hedge. When asked on Monday about its prospects, House Speaker David Osborne, R-Prospect, said that Republicans in the House continue to consider such a bill, but a full caucus conversation has not taken place “for some time.”

Tamarra Wieder, Kentucky State Director for Planned Parenthood Alliance Advocates, previously told the Herald-Leader that abortion exceptions while the procedure still remains largely illegal doesn’t really really work as policy.

“Exceptions are not effective policy, especially in ban states, because there are all these laws and restrictions that criminalize providers. They put a lot of liability on hospitals, and they chill care,” she said. “Providers are afraid. And more importantly, the lawyers of the hospitals and administrators are afraid, too.”

Wieder said 73 of Kentucky’s 120 counties don’t have practicing OBGYNs, and Kentucky’s ban makes it difficult to attract providers to residency programs or staying in state after completing residency. “There are too many pieces of the past decade of barriers that have been put in place, and that is why these bills have been so tactical at stopping care in the state,” she said.

Reporter Tessa Duvall contributed to this story.

This breaking story will be updated.