GOP leaders say they’re open to adding abortion exceptions & preview next session

The leaders of both legislative chambers in the Kentucky statehouse say they’re open to having the discussion of introducing rape and incest exceptions to the state’s near-total ban on abortion.

Railing against the current ban’s lack of exceptions for rape and incest was featured heavily in a successful campaign against an anti-abortion amendment proposed in 2022. It also played a key role in Democratic Gov. Andy Beshear’s re-election victory this month, with his GOP opponent Daniel Cameron’s ties to the ban playing a key role in campaign messaging.

Now, key Republicans in the legislature – the GOP controls 80% majorities in the Senate and House – say there’s a chance those exceptions get passed this session.

The topic was not much of a subject of discussion at the Kentucky Chamber’s Legislative Preview Conference at the Central Bank Center on Monday, but Speaker of the House David Osborne, R-Prospect, and Senate President Robert Stivers, R-Manchester, spoke about the topic with the Herald-Leader afterward.

“There is some interest in our caucus in passing those exceptions,” Osborne said, adding that opinions range widely within the House GOP.

The same can be said of the 31-member Senate GOP caucus, according to Senate President Robert Stivers, R-Manchester. Though the Senate is often seen as the more socially conservative and hesitant to change of the two branches, Stivers did not rule out the possibility of the chamber moving to add exceptions for rape and incest when asked on Monday,

“We’re getting ready to have our caucus and kind of go through this. This will be a decision that everybody has varying opinions as to what should happen or what shouldn’t happen … It is such a personal issue to people. We’re gonna have to have that type of discussion amongst ourselves and then collaborate with the house,” Stivers said.

Whether that openness converts into action remains to be seen. But even beyond the 2023 election results, circumstances have changed.

“There has been a general school of thought all along that ultimately the (Kentucky) Supreme Court would step in on this measure and mandate that we do something – that’s not going to happen in the short term. So I think that that conversation is going to continue to happen,” Osborne said.

The speaker was referring to a case that was before the Kentucky Supreme Court this time last year.

Last summer, Kentucky’s two remaining outpatient abortion providers sued the state after a pair of laws took effect — a trigger law banning abortion in all cases except to save the life of a pregnant person took effect, and a six-week ban, which outlaws abortion once fetal cardiac activity develops.

Planned Parenthood and EMW Women’s Surgical Center argued the bans were unconstitutional, violating a pregnant person’s right to bodily autonomy and self-determination — rights they argued were protected under the Kentucky Constitution.

The clinics had asked the high court to temporarily block both laws while the broader and more consequential question — does the Kentucky Constitution inherently protect a right to abortion? — was interpreted by the courts.

Because the case was actively being vetted by justices during a portion of the 2023 legislative session, lawmakers balked at adding rape or incest exceptions to the law and opted to wait and see how the court came down on the issue.

House Majority Whip Jason Nemes, R-Louisville, filed a bill at the time to add exceptions for rape, incest and fatal fetal anomalies, but it never received a committee hearing.

The Kentucky Supreme Court heard oral arguments in that case in November 2022, but did not issue its opinion until February, when a majority of justices denied injunctive relief to the clinics because they lacked adequate constitutional standing to sue on behalf of impacted patients.

Attorneys for the clinics had yet to find a plaintiff who is pregnant and in need of an abortion by the filing deadline this June, so they asked a lower court judge to dismiss their case against the state. The question at the heart of the case has yet to be answered.

Since there is no active case before the courts asserting the state constitution’s full scope of abortion protections, Osborne said his caucus this session was likely going to have “much more active conversations” about adding exceptions.

Though “frankly, I don’t know where our caucus is on it,” he said. “We’ve got a lot of members that support (exceptions), we’ve got others that are perfectly content to just leave it the way it is.”

Singing a different tune on relationship

Some leading Republican legislators have stressed that Beshear’s opinion won’t change their work, as the GOP touts massive supermajorities that have proven able to override the governor’s vetoes.

With a month-and-a-half until session, it’s unclear exactly on what policies they might align. Osborne said he has no way of knowing.

“I honestly mean this in the most respectful way: I don’t have a clue what his legislative agenda is. Not one single time has he picked up the phone, has he sent (Beshear Senior Adviser) Rocky (Adkins) over to talk. There may be all kinds of stuff we can work together on, but you can’t make policy by press conference. It might come as a shocking realization to him that I don’t watch his press conferences,” Osborne told the Herald-Leader.

Osborne compared Beshear to his father, former governor Steve Beshear, who he said spoke with him frequently. That’s not the case with Beshear the younger, Osborne said.

Like Osborne, Stivers stated that he doesn’t pay close attention to Beshear’s public statements. However, he stated that the legislature and governor are “probably in alignment to do something” with regards to education funding.

“I think we are in agreement that we want to get everything we can into educational systems because that’s the valued asset — we have to educate for our future,” Stivers said.

Still, Beshear has frequently rallied to get school employees a direct raise. That contrasts with the legislature’s posture, which is to provide funding through SEEK funding, a statewide formula that determines per student funding using state and local dollars.

Meanwhile, Adkins, Beshear’s former Democratic primary competitor-turned-surrogate, painted a different picture of the relationship between the branches in Frankfort to the crowd gathered at the legislative preview.

“Every member of the General Assembly will tell you they know they have an open door policy with me, and I hope they know that with the governor. I did not know of a meeting that’s been asked for by a legislator that the governor has not basically brought in to say ‘yes, let’s have this meeting,’” Adkins said.

Stivers and Osborne, in a panel, emphasized that, while they would have preferred Cameron to win over Beshear, their legislative work remains unchanged.

Stivers added that Beshear’s win was disappointing but “wasn’t unexpected.”

“It was the power of incumbency that I think really was the difference,” Stivers said. “When you think of the total dollars spent, the reality of having unfettered access to the media, which was very rarely pointed and questioned, you know what the outcome’s gonna be.”

Constitutional amendment(s)

All legislative leaders interviewed at the Kentucky Chamber event said that a constitution amendment allowing school choice initiatives to become law – the courts have previously stymied such efforts – would likely pass.

“Clearly, the courts are sending us a message that the one sure way that we don’t have to continue to have this conversation year after year after year on constitutionality is to amend the constitution. I do think it will be a priority and I think that a large majority of our members support it and are in favor of it,” Osborne said.

Senate Majority Floor Leader Damon Thayer, R-Georgetown, called such a constitutional amendment bill his “number one priority.” If passed, the amendment would have to be approved by a majority of Kentucky voters at the ballot box next November.

Leaders were more ambivalent about the likelihood of passage for a constitutional amendment on local taxation, which several groups are calling for in the lead-up to session.

Money talk

It didn’t come as a surprise, but both House and Senate appropriations and revenue committee chairs – they play a central role in budget sessions such as this upcoming one – reaffirmed their commitment to lowering the income tax rate with the formula established in 20

Both Sen. Chris McDaniel, R-Ryland Heights and Rep. Jason Petrie, R-Elkton, said that they did not anticipate dropping the current income tax rate of 4% in spite of not meeting the established criteria for doing so.

Those criteria:

• That the balance in the Budget Reserve Trust Fund — often called the rainy day fund — at the end of a fiscal year is at least 10% of General Fund revenue.

• That General Fund revenues exceed appropriations in addition to the cost of a 1% reduction in the state income tax.

Petrie and McDaniel both said that it was “doubtful” the legislature would pursue a bill to change those criteria.