Kentucky’s ‘trigger law’ could put doctors in prison for five years. How does it work?

When the U.S. Supreme Court last Friday reversed its Roe v. Wade decision guaranteeing a right to abortion access, Kentucky’s Human Life Protection Act — passed by the General Assembly in 2019 — took effect.

This is what’s referred to as Kentucky’s “trigger law,” because it automatically was triggered by the fall of Roe.

How does it work?

Effective immediately, surgical and medication abortions are illegal in Kentucky. Performing an abortion is a Class D felony, punishable by one to five years in prison. Penalties can be levied on those who perform a surgical procedure or prescribe or provide pills to a woman to end her pregnancy, such as mifepristone and misoprostol.

Pregnant women cannot be held criminally responsible under the law as presently written. The people at risk would be medical professionals — doctors, nurses, pharmacists.

Are there exceptions?

There are a few exceptions to the ban.

Doctors can perform an abortion if they believe, based on “reasonable medical judgment,” that it’s necessary to prevent the death or substantial risk of death of a woman because of physical problems, or to “prevent the serious permanent impairment of a life-sustaining organ.”

However, there are no exceptions for pregnancies caused by rape or incest or for pregnancies in minors.

Does the trigger law affect birth control or contraceptives?

The law does not ban contraceptives that “prevent pregnancy or before a pregnancy can be determined through conventional medical testing,” according to a directive issued by the Kentucky attorney general’s office. This would allow the emergency contraceptives commonly known as the Plan B or “morning after” pills.

Who’s in charge of enforcing the ban?

The law provides scant guidance on who exactly is supposed to pursue criminal penalties across Kentucky’s 120 counties or what steps law enforcement agencies can take to learn who is getting an abortion. This might become an issue down the road as abortions become an even more private matter.

The two state-regulated clinics that provided outpatient surgical abortions, in Louisville, stopped doing so on Friday and joined lawsuits against the trigger law. As licensed health care facilities, the clinics can’t perform abortions without state approval. And their medical professionals also are licensed by the state of Kentucky.

But Kentucky women are increasingly turning to medication abortion rather than visiting clinics, in some cases getting FDA-approved pills by mail from other states, a practice that Kentucky lawmakers tried to outlaw this year with House Bill 3. That legislation temporarily has been blocked in federal court by a lawsuit.

The office of Attorney General Daniel Cameron says he shares “concurrent jurisdiction” for enforcing the trigger law with local prosecutors.

“The unborn have the same rights to life as you and me,” Cameron, a Republican abortion opponent who is running for governor, told reporters last Friday. “We must commit to defending and implementing those laws. I, for one, will do my part in this role as attorney general.”

It’s not clear at the local level how much of a priority other elected leaders will place on enforcing the trigger law.

In Louisville, the state’s largest city and home of the two clinics that provided outpatient abortions, Democratic candidate for mayor Craig Greenberg said in a statement that, if elected, he would not let the police department become “the enforcement arm of a ban on reproductive healthcare.”

Lexington Mayor Linda Gorton on Tuesday said she is “concerned about the health and well-being of our residents who will be most affected by this decision,” and she has asked city attorneys “to look into it.” Gorton’s re-election challenger, David Kloiber, went further last week and said he would not divert police from their current duties to enforce a state abortion ban on victims of rape and incest.

“As mayor, there is no circumstance in which I would take law enforcement away from protecting our streets to go after victims of crime,” Kloiber said.

Angela Evans, the newly elected Fayette County attorney, said last Friday: “I will not be inclined to prosecute women or those trying to help them make decisions ... on when and how they reproduce.” Evans also announced plans to attend a rally in Lexington that protested the Supreme Court decision reversing Roe.