Kentucky's two clinics suspend abortions as lawsuits challenge new law that is called 'one of the most restrictive in the nation'

Rep. Randy Bridges, R-Paducah, gives a thumbs down to abortion advocates who chanted "Bans off our bodies" at the state Capitol April 13. (Photo by Ryan C. Hermens, Lexington Herald-Leader) 

By Melissa Patrick
Kentucky Health News

Kentucky's Republican-majority legislature overrode Democratic Gov. Andy Beshear's veto of legislation with strict requirements that advocates say have forced the state's only two abortion clinics to stop providing abortions -- and lawsuits by the clinics to nullify the new law.

The law, passed as House Bill 3, bans mailing of medications that have become the means for most abortions in Kentucky, strengthens parental-consent rules, increases reporting requirements, requires aborted fetuses to be cremated or buried, and bans abortion after the 15th week of pregnancy, mimicking a Mississippi law that is awaiting a decision from the U.S. Supreme Court.

That decision, expected in June, could overturn or roll back Roe v. Wade, the landmark 1973 ruling that has guaranteed the constitutional right to an abortion until a fetus can live outside the womb, roughly 23 to 24 weeks. The high court court not only lower that to 15 weeks but take Roe off the books.

Since Republicans took over the House in 2017, they have steadily passed legislation that has been setting up Kentucky to ban abortions altogether. In 2019, the legislature passed a "trigger law" that would ban abortion immediately if Roe is overturned. In 2021, it voted to add to the state constitution a statement that it does not secure or protect a right to abortion or funding of abortion, if voters approve it as a constitutional amendment this November. 

Rep. Nancy Tate, R-Brandenburg, the sponsor of HB 3, has said the purpose of her bill, dubbed the "Humanity in Healthcare Act 2022" is to better protect the health of women and minors seeking abortion, but opponents disagree. 

"Make no mistake, the Kentucky legislature's sole goal with this law is to shut down health centers and completely eliminate abortion access in this state," leaders of Planned Parenthood and the American Civil Liberties Union of Kentucky said in a statement.

Beshear said he vetoed the bill because there were no exemptions for rape or incest and because it is likely unconstitutional, among other reasons. 

“Rape and incest are violent crimes,” Beshear said in his veto message. “Victims of these crimes should have options, not be further scarred through a process that exposes them to more harm from their rapists or that treats them like offenders themselves.”

The governor said a 12-year-old girl "raped and impregnated by her father" couldn't get an abortion without notifying him and her mother at least 48 hours before having the procedure or going through a court hearing if they did not allow it.

Kentucky's only two abortion providers said they had to stop conducting the procedure because other restrictions and reporting requirements in the 72-page bill went into effect as soon as it was finally passed, under an emergency clause. The legislature sent Beshear the bill March 30 after overwhelming votes for it.

EMW Women's Surgical Services and Planned Parenthood, both abortion providers in Louisville, have filed separate federal lawsuits challenging the new law and asking a judge to suspend it. 

The ACLU said in a news release, "The lawsuits argue that the law would create unnecessary abortion requirements while simultaneously making those requirements impossible to comply with given the immediate effective date of the law, forcing providers in the state to stop offering abortion services. Because the law is impossible to comply with, it amounts to a de facto abortion ban, thus violating patients’ federal right to abortion under Roe v. Wade." 

Kentucky's Republican attorney general, Daniel Cameron, said he is ready to defend the new law. 

“The General Assembly passed HB 3 to protect life and promote the health and safety of women, and we are prepared to earnestly defend this new law against the legal challenge from Planned Parenthood and the ACLU," he said in a statement. 

Alex Acquisto of the Lexington Herald-Leader breaks down four key points in the new abortion law, which Caroline Kitchener of The Washington Post says is "one of the most restrictive in the nation." 

Kitchener adds in a separate online newsletter that more than 500 anti-abortion measures are moving through state legislatures this year and that as more states enact strict abortion restrictions, patients who can afford to cross state lines will be forced to travel further. The Post tracks new action on abortion legislation in real time  across the states on its abortion legislation tracker.

Alecia Fields, an abortion provider at Planned Parenthood in Louisville, told Kitchener that among the most difficult restrictions to comply with is the new rule on fetal remains, which will likely require the hiring of more people to facilitate "an elaborate and medically unnecessary burial process for each abortion performed" as well as contracting with funeral homes, which may not be willing to open themselves to the backlash from the community. 

Both Kentucky abortion providers are still taking calls from patients, and Planned Parenthood says it is directing Kentucky women seeking abortion to other states, Deborah Yetter reports for the Louisville Courier Journal in an article with a headline asking, "Did Kentucky ban abortion?"

Planned Parenthood spokeswoman Nicole Erwin said Thursday, "Any patients seeking abortion care in Kentucky are still advised to reach out to us for their first appointment so that we can coordinate care in Indiana or another state that can provide the care they need. Planned Parenthood's doors are and will remain open in Kentucky and will continue providing all other reproductive care."

As conservative states continue to pass anti-abortion laws, "Eliminating rape and incest exceptions has moved from the fringe to the center of the antiabortion movement," Jennifer Haberkorn reports for the Los Angeles Times. 

"Over the last four years, 10 states have enacted abortion bans in early pregnancy without rape or incest exceptions: Alabama, Arkansas, Kentucky, Louisiana, Mississippi, Missouri, Oklahoma, Ohio, Tennessee and Texas. All were blocked by courts, except Texas’ law, which is in effect," Haberkorn reports.

Haberkorn added in her April 8 article that U.S. Sen. Mitch McConnell of Kentucky, who said he supported exemptions for rape and incest in 2019 when Alabama passed an abortion law without those exceptions, declined to comment on the current legislation. 

Mian Ridge of The Economist writes that if the Supreme Court overturns Roe, "Decisions on abortion would return to the states and at least half would probably ban it. That would exert a particularly heavy toll on poor women. Many of the states that are keenest on banning abortion are among those that offer the least help to low-income mothers and their children." 

"Whatever the laws may say, history has shown that women will continue to have abortions," Jessica Bruder writes for The Atlantic, in a deep dive into what the future of abortion in America may look like. It explores how a covert network of activists are preparing for the end of Roe.