The Kentucky Supreme Court on Tuesday scrutinized oral arguments in a case that will likely dictate the future of abortion access in the commonwealth.
The legal challenge before the high court was initially filed in a circuit court in late June by Kentucky’s two abortion clinics, EMW Women’s Surgical Center and Planned Parenthood, after the state’s trigger law and six-week abortion ban became law. The trigger law criminalizes abortion in all circumstances except in medical emergencies that threaten the life of a pregnant person, and the six-week ban outlaws abortion after the sixth week of pregnancy, typically when fetal cardiac activity is first detected.
Both clinics assert in their joint lawsuit that because the state’s abortion bans revoke access to comprehensive health care, including abortion, the laws violate an individual’s right to privacy and bodily autonomy, which are protected under the Kentucky Constitution.
The overarching question that the high court needs to answer, said Heather Gatnarek, lead counsel representing EMW, is: “at what point in pregnancy does the state’s interest in protecting fetal life become compelling enough to outweigh an individual’s rights to make their own determinations about their bodies and their pregnancies?”
For a little more than a week in late July, both bans were temporarily suspended by way of an injunction from a Jefferson circuit judge. Republican Attorney General Daniel Cameron petitioned the Kentucky Court of Appeals to reinstate both laws, and it did. Kentucky’s abortion clinics then appealed to the state’s highest court.
Over ringing chants from people protesting Cameron’s defense of Kentucky’s abortion bans from the Capitol rotunda Tuesday morning, Gatnarek, representing EMW, asked justices to reinstate that injunction and block enforcement of both laws until the case is resolved in court.
“There is real irreparable injury happening Kentucky” as a result of both bans, said Gatnarek, who was arguing on behalf of both abortion providers and is a staff attorney with the American Civil Liberties Union of Kentucky. She cited an amicus brief filed by national medical associations, including the American College of Obstetricians and Gynecologists, which skewered Kentucky’s current bans and their listed medical exceptions for creating “risks” and “unacceptable barriers” to health care for patients and their providers.
“Kentucky bans and their exceptions do not and cannot give physicians workable guidance about when procedures are permitted or prohibited in what are often complex and nuanced situations that call for medical judgment and expertise, rather than legislatively-imagined but medically non-existent bright lines,” the brief reads.
“Doctors should not be placed into a situation where they are left to watch their patient deteriorate before they meet one of these very narrow exceptions,” Gatnarek said.
Since a patient’s access to health care is “inextricably bound up in a physician’s ability to provide that care,” and the law intervenes in the patient-doctor relationship, Gatnarek argued, an injunction blocking both laws is imperative.
Cameron’s central argument rebuffing this legal challenge is fairly to the point: because the state constitution does not explicitly mention abortion, it is decidedly not a constitutionally-protected right.
EMW and Planned Parenthood are “asking this court to hold that our constitution enshrines a right to abortion for any reason under any circumstance,” said Solicitor General Matthew Kuhn, who opened Tuesday’s oral arguments.
But “there is not a shred of evidence . . . that suggests our constitution implicitly protects abortion,” he said. “What does all this silence mean? It means that our constitution is neutral on the issue of abortion,” and the judiciary should relinquish governance of the issue to the legislature.
If constituents want a change, they “should pick up the phone and call his or her representative in the General Assembly, not the seven members of this court,” he said.
This argument is an extension of a brief Cameron filed last week, one day after Kentucky voters rejected Amendment 2, a largely GOP-backed proposal that would have amended the state constitution to prohibit a right to abortion or the funding of abortion. Such a change, had it passed, would not have banned abortion.
Rather, it would’ve barred Kentucky courts from interpreting a right to abortion as inherently existing within the constitution, and would’ve made lawmakers the primary arbiters of abortion laws. But voters rejected that proposal, with 52.5% voting “no” and 47.5% voting “yes,” according to unofficial results from the Associated Press. This leaves open the door for justices to interpret the constitution as containing abortion rights.
Cameron, in that brief, asked justices not to factor that referendum result into their decision on this case.
“Even if the Court tries to read something into yesterday’s vote,” Cameron wrote in the November 9 brief, “the most that can be said of the close result is that it reiterates why the issue of abortion should be resolved by the General Assembly.”
Kuhn on Tuesday recast this argument, saying the “closeness of the vote, if you can read anything into it, is that it’s divisive issue, which we think emphasizes the point” that governance of such a divisive issue should fall to the General Assembly — the very proposal voters rejected.
Two of the court’s justices were quick to strike back at this assertion.
Deputy Chief Justice Lisabeth Hughes said Amendment 2 was authored and passed into law by lawmakers, and voters rejected it. “I understand the importance of the representatives, the people in the General Assembly, but it strikes me that a ballot initiative is the purest form of democracy. It is the people themselves speaking, not through someone else,” she said. “Why are you suggesting it has no impact on the issues before us today?”
Likewise Justice Michelle Keller, who won reelection last week, asked what the point of the ballot initiative was, which would’ve wrested oversight away from the judiciary, in the first place, if Cameron’s argument now is for the high court to disregard the result.
“I’m struggling with why, then, the General Assembly thought it so important to put that initiative on the ballot to amend the constitution,” she told Kuhn.
As for the Attorney General’s claim that the constitution’s authors didn’t write “abortion” as a protection into the constitution, Deputy Chief Justice Hughes asked Kuhn if part of that may have been because women did not have equal status at the time Kentucky’s founding document was written.
“There were no women,” at the table when the Kentucky Constitution was written or deliberated in 1890, she said. “Women did not have the right to vote in 1890. Women could not even own property in 1890. Women were not considered.”
Since women did not have a substantive say at the time the constitution was written, and the court has never weighed in on this pointed question, Hughes asked of Kuhn, “is that not, then, something the court can consider when deciding a 2022 issue following a ballot initiative when the people voted no?”
The constitutionality of a complete abortion ban “is a question that’s never been answered,” she said. “That’s the issue before the court today.”
———
