Where lawsuits on Kentucky’s bans on abortion, gender-affirming care stand

Like many states across the country, Kentucky has enacted laws restricting abortion access and gender-affirming health care for transgender youth. Both over the past year have brought lawsuits by Kentuckians who call them unconstitutional.

Kentucky’s Republican super-majority General Assembly in 2019, under then-Gov. Matt Bevin, passed a trigger law banning abortion except in medical emergencies. It was intended to lock into place immediately if Roe v. Wade was ever overturned or significantly modified.

When the U.S. Supreme Court in June 2022 voted down the precedent that had provided federal abortion protections for a half-century, abortion became illegal in Kentucky by way of this law. A concurrent six-week ban on abortions also took effect.

Neither law includes exceptions for rape, incest or nonviable conditions during pregnancy that make survival after birth impossible.

The GOP-controlled Legislature this year passed Senate Bill 150 over Democratic Gov. Andy Beshear’s veto. The omnibus bill includes a complete ban on hormone therapy, puberty blockers and gender-transition surgeries for trans Kentuckians under age 18 — standard of care offerings endorsed by major U.S. medical associations.

Abortion bans, lawsuits

Since the trigger law and six-week ban took effect last summer, abortion has remained illegal. Health care providers who perform abortions outside the law can be charged with a Class D felony.

Both laws have been challenged in court twice.

The first, filed in June by the state’s two remaining outpatient abortion clinics, Planned Parenthood and EMW Women’s Surgical Center, argued the current bans deprive pregnant patients of their right to bodily autonomy and self-determination. Those are rights, they say, that are protected by the Kentucky Constitution.

The Kentucky Supreme Court, however, ruled in a 4-3 decision that abortion providers did not have third-party standing to sue on behalf of their patients.

This historic ruling meant that all future challenges to Kentucky’s restrictive abortion laws would fall to the population most impacted by them: Pregnant women.

Unable to produce a pregnant plaintiff by the filing deadline set by the court, Planned Parenthood and EMW asked a judge to dismiss their case.

The first named plaintiff, “Jane Doe,” came forward in December to file a class-action lawsuit, challenging the constitutionality of both bans.

Eight weeks pregnant when she filed, Doe argued she and other pregnant women who wish to no longer be pregnant are “suffering medical, constitutional and irreparable harm because they are denied the ability to obtain an abortion.”

Shortly after she filed, Doe learned her embryo no longer had cardiac activity. Less than a week later, her attorneys with the American Civil Liberties Union of Kentucky asked for her case to be dismissed.

Gender-affirming health care ban, lawsuit

After the March passage of Senate Bill 150, seven trans minors and their families sued the state, arguing that barring them from accessing evidence-based health care endorsed by major U.S. medical associations violated their constitutional rights.

They initially petitioned a federal judge in May to temporarily block the medical portion of the law from taking effect, arguing banning this type of health care violates parents’ Due Process rights to direct medical treatment of their child.

It also, they said, infringes on trans adolescents’ Equal Protection rights because the law discriminates against them based on sex and their status as trans people.

U.S. District Judge for the Western District of Kentucky David Hale granted their request, temporarily blocking the ban hours before it was slated to take effect in July.

“Based on the evidence submitted, the court finds that the treatments barred by SB 150 are medically appropriate and necessary for some transgender children under the evidence-based standard of care accepted by all major medical organizations in the United States,” Hale wrote.

Then-Attorney General Daniel Cameron challenged that decision to the Sixth Circuit Court of Appeals, asking for the ban to be reinstated.

While this was happening, a similar lawsuit in Tennessee whose plaintiffs had also been granted temporary relief, made its way before the Sixth Circuit appellate court — a regional panel that covers Kentucky, Tennessee, Ohio and Michigan. A panel of appellate judges stayed that lower court’s order, reinstating the Volunteer State’s gender-affirming medical care ban.

In doing so, a three-judge panel also consolidated Kentucky’s and Tennessee’s cases into the same appeals process.

That panel decided 2-1 in late September to reverse the lower court’s ruling, allowing the full law to take effect once again.

“No one in these consolidated cases debates the existence of gender dysphoria or the distress caused by it. And no one doubts the value of providing psychological and related care to children facing it,” Chief Judge Jeffrey Sutton and Judge Amul Thapar wrote in the majority opinion.

“The question is whether certain additional treatments — puberty blockers, hormone treatments and surgeries — should be added to the mix of treatments available to those age 17 and under.”

In November, plaintiffs in both Tennessee’s and Kentucky’s cases went to the highest court in the land — the U.S. Supreme Court — and asked its justices to block both bans from being enforced.

If justices decide to hear the case, it would be the first time the U.S. Supreme Court has weighed in on such matters.