Why Kentucky’s abortion bans are so hard to challenge in court
The first pursuit by a pregnant woman in Kentucky to legally challenge the state’s near-total abortion bans — historic not just in the Bluegrass State, but nationwide — has ended less than two weeks after it began.
On Dec. 8, “Jane Doe,” who was eight weeks pregnant at the time, filed a class-action lawsuit, asking a Jefferson County circuit judge to intervene on her behalf and allow her to terminate her pregnancy and permanently block Kentucky’s trigger law and six-week abortion bans from enforcement.
On Monday, about a week after she learned her embryo no longer had cardiac activity, she asked the judge to dismiss her case.
While the request to dismiss ends her particular case, more are predicted to follow, as attorneys with the American Civil Liberties Union of Kentucky and reproductive rights advocates mobilize to mount another legal challenge.
But the short-lived nature of this case portends the unique difficulty plaintiffs face in Kentucky in trying to overturn these bans, say legal experts who spoke to the Herald-Leader.
In effect, “Kentucky has made it harder than in every other state to challenge its abortion laws,” said David S. Cohen, a law professor at Drexel University who specializes in abortion policy.
In February, four justices on Kentucky’s highest court agreed that health care clinics that provide abortions did not have legal standing to sue on behalf of their patients, who were and continue to be barred from accessing the medical procedure.
“The abortion providers allege that the genuine hindrance requirement is met because their patients fear their decision to receive an abortion will become public even if they sue pseudonymously,” the majority wrote.
But since there are allowances for some plaintiffs to sue with anonymity, it should resolve the fear of being identified, they said. Beyond this hurdle, there are no significant obstacles that should reasonably prohibit a pregnant person wanting an abortion from suing Kentucky over its abortion bans, they concluded.
“We are acutely aware that abortion is perhaps the most polarizing and difficult issue we face as members of this court, this commonwealth and this country,” they wrote.
But, “We cannot hold that the abortion providers in this case have demonstrated that granting them third-party standing to assert the rights of their patients is appropriate.”
This historic ruling meant that all future challenges to Kentucky’s restrictive abortion laws, which don’t include exceptions for rape, incest or fatal conditions that make survivable after birth impossible, would fall to the population most impacted by them: Pregnant women.
The 4-3 decision last February upended longstanding precedent that had previously allowed health care providers to sue on behalf of their patients, as two dissenting justices in that ruling pointed out.
But even more notably, it solidified Kentucky as an outlier, raising the bar higher than any other state for effectively contesting the state’s trigger law and six-week ban.
“The Kentucky Supreme Court is the only highest court in the land that has said abortion providers cannot bring cases on behalf of their patients,” Cohen said. Instead, it has “put that burden on individual pregnant women.”
“It’s really hard to find people who are willing to give up their privacy amidst a difficult personal time, whether it’s someone who’s pregnant and doesn’t want to be, or someone who wanted to be pregnant but has a medical complication,” he said. “And then add onto it to be a plaintiff in a lawsuit, that’s a lot to ask of people.”
Though justices said no major “hindrance” existed for pregnant women wishing to sue the state over these laws, experts said the sheer amount of time it took for a plaintiff to step forward — almost a year and a half after the bans took effect — is proof of that hindrance.
‘A very, very narrow path’
In early December, 10 months after the high court issued its decision, the first plaintiff came forward and pseudonymously challenged the constitutionality of Kentucky’s abortion bans. Meanwhile, a compilation of data show hundreds of women have left Kentucky over the past year to terminate their pregnancies in states where the procedure is more accessible.
Though hundreds of women have found themselves in this position since Kentucky’s abortion bans became law, it’s not surprising only one has stepped forward to embark on a legal challenge, said Mary Ruth Ziegler, a law professor at the University of California-Davis specializing in the political history of reproductive rights.
“People bringing lawsuits like this one not only have a lot going on, they’re also people who may have complications in their pregnancies,” Ziegler said.
“To be navigating those medical hurdles while going to court is daunting,” she said. “And then there are just other practical hurdles: Not everybody who’s pregnant and suffering a complication like this would know how to navigate the court system.”
Unable to produce a plaintiff by the filing deadline this past June, in light of the new third-party standing parameters handed down by the high court, Planned Parenthood and EMW were forced to ask for a judge to dismiss their case.
Attorneys for both providers vowed to continue pursuing a legal challenge to both bans – a point a majority of justices seemed to acknowledge in their ruling.
“Nothing in this opinion shall be construed to prevent an appropriate party from filing a suit at a later date,” they wrote. In the meantime, “this opinion does not in any way determine whether the Kentucky Constitution protects or does not protect the right to receive an abortion.”
That later date came almost a year later.
On Dec. 8, Doe filed a class-action lawsuit, asking a Jefferson County circuit judge to intervene on her behalf and allow her to terminate her pregnancy.
By being forced to remain pregnant against her will, she and others in her position are “suffering medical, constitutional and irreparable harm because they are denied the ability to obtain an abortion,” her lawyers with the American Civil Liberties Union of Kentucky wrote.
In a statement at the time, Doe said: “I hope this case will restore abortion access in Kentucky, if not for me, then for the countless people in the future who deserve the autonomy to decide what is best for themselves and their families.”
Later that afternoon on the day of her filing, during an ultrasound at a doctor’s appointment, she learned her embryo no longer had cardiac activity, according to court documents.
This development happened just days after a Texas woman, Kate Cox, asked a local judge there for emergency relief to terminate her nonviable pregnancy. Cox and Jane Doe were the first adult women since before Roe in 1973 to ask a judge to allow them to get abortions in states that have banned the procedure.
Less than a week after Cox asked a judge to intervene, while courts sparred over whether to grant her that access, she left Texas to get an abortion.
Whether or not Jane Doe continues as lead plaintiff in Kentucky, it’s the first case nationwide that challenges the constitutionality of a state’s abortion ban, rather than just an aspect of a ban, such as a lack of exceptions.
Both Jane Doe’s and Kate Cox’s circumstances highlight not only the risk of pregnancy, but the tenuousness of relying on pregnant women as the primary plaintiffs in these cases, whose need for relief from courts is inherently “fleeting,” Cohen said.
“It creates a very, very narrow path for those suffering under these bans” to meaningfully challenge them, said Chris Banks, a political science professor at Kent State specializing in American legal processes and constitutional law.
In a statement Monday after Doe requested her case be dismissed, the ACLU and Planned Parenthood laid blame on Kentucky’s high court.
“The Kentucky Supreme Court’s decision earlier this year to take away health care providers’ ability to raise the rights of their patients has backed Kentuckians into a corner,” they said.
“The court’s decision has forced Kentuckians seeking abortion to bring a lawsuit while in the middle of seeking time-sensitive health care, a daunting feat, and one that should not be necessary to reclaim the fundamental right to control their own bodies.”
‘Litigate this state by state’
Legal scholars anticipate more of these challenges from pregnant plaintiffs will continue to crop up in states without abortion bans.
In turn, though it will take time, states will be forced to answer a question they evaded for half a decade while Roe was the law of the land: Do their respective constitutions contain abortion protections?
In November 2022, weeks before the high court heard oral arguments in the initial case brought by abortion providers, Kentucky voters rejected a GOP-backed ballot measure that would’ve added words to the constitution to make clear there was no right to abortion, or the funding of one.
In defending Kentucky’s abortion bans in the face of legal challenges, outgoing Attorney General Daniel Cameron has relied on the originalist reasoning. That is, because the Kentucky Constitution does not explicitly contain the word “abortion,” access to one is not an inalienable right and therefore neither ban is unconstitutional.
But in reality, no Kentucky court has ever decided whether its founding document includes these protections.
The commonwealth isn’t alone in this regard, said Rocky Rhodes, a law professor of state and federal constitutional law at South Texas College of Law at Houston.
“One of the reasons why this is an unanswered question in so many states is because as long as we had the Supreme Court adhering to Roe, it really wasn’t necessary for state supreme courts to make these determinations as to whether their own constitutions protected the right to have an abortion,” Rhodes said.
“This is why we’re having this wave of court cases across the nation and courts are having to litigate this state by state,” he said.
Though Jane Doe in Kentucky is no longer pregnant, that fact shouldn’t have necessarily precluded her from continuing to be a plaintiff in this case, said Lexington attorney Bruce Simpson.
The federal doctrine — “capable of repetition yet evading review” — applies in exceptional circumstances when a challenged action, by nature, is too short to be fully resolved in court by the time the challenged action is no longer needed.
In the case of a lawsuit like Jane Doe’s — a process that would’ve likely taken longer than nine months to resolve in court — a plaintiff would likely no longer be pregnant and in need of an abortion by the time a court issues a final ruling.
“Issues surrounding pregnancy are so short, a woman wanting an abortion is either going to have the baby, die during pregnancy” or travel out of state to get an abortion before the case is finally heard, Simpson said.
“They’re never going to be able to stay in pregnancy throughout the entire time the (court case) is pending,” he said.
This happened with Norma McCorvey, or Jane Roe, the lead plaintiff in the landmark Roe v. Wade case. McCorvey, who sued the state of Texas in 1970 to get an abortion, had given birth to her child by the time the case was decided in 1973.
It was this federal doctrine that allowed her to remain lead plaintiff in that case, Simpson said.
Even so, the Kentucky Supreme Court’s decision to deny third-party standing to Kentucky abortion providers and require anyone wishing to challenge abortion laws to be pregnant at the time they file is a procedural hurdle, Rhodes and others said.
And it only delays an inevitable judgment on the question at the heart of this case: Does the Kentucky Constitution protect an individual’s right to access an abortion?
Justice Angela Bisig, the newest member of the high court, noted this in her dissenting opinion.
“Make no mistake,” she wrote, that by denying third-party standing to providers, Kentuckians are “left without a forum” in which this larger question can be answered.
Bisig, of Louisville, disagreed with the majority’s opinion that women impacted by Kentucky’s abortion bans face no real obstacles in legally challenging them.
“It cannot reasonably be questioned that the overwhelming majority of Kentucky citizens lack the financial resources or legal knowledge to mount such a challenge of their own,” she wrote.
Yet because of the majority’s decision on standing, “The resolution of the underlying case on the merits has been delayed,” she said.
“Ultimately, the questions as to whether the bans are unconstitutional are likely to make their way back to the court. That process should happen as quickly and completely as possible, so that our review can then clarify the law in Kentucky for our citizens.”
