Abortion is on Ky.'s Nov. 8 ballot in a constitutional amendment, a Supreme Court race and some state legislative elections

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Kentucky Health News

In just over three months, Kentuckians will have a chance to vote on a constitutional amendment that if passed, would state that there is no constitutional right to abortion in Kentucky. 

Under House Bill 91 of 2021, the Nov. 8 ballot will ask Kentuckians to vote "yes" or "no" on adding this phrase to the Kentucky Constitution: “To protect human life, nothing in this Constitution shall be construed to secure or protect a right to abortion or require the funding of abortion.” 

If passed, the constitution would then pre-empt any court ruling for state abortion rights. That would negate any ruling like the temporary injunction Jefferson Circuit Judge Mitch Perry has issued in a lawsuit filed by the state's two abortion clinics, arguing that two key abortion laws violate a right to privacy that earlier court rulings have found in the state constitution. Attorney General Daniel Cameron has appealed Perry's ruling.

One law bans abortions after the sixth week of pregnancy; the other is a "trigger law" activated by the U.S. Supreme Court's reversal of its 1973 Roe v. Wade decision legalizing abortion nationwide. The trigger law bans abortion except in case of threat to the woman's life or permanent harm to a life-sustaining organ.

So for now, abortions remain legal in Kentucky for women with pregnancies under 15 weeks, the threshold for a ban the legislature passed this year. 

"Democrats and pro-choice advocates are banking on the failure of this referendum to be a bellwether for abortion policy moving forward in Kentucky," Alex Acquisto of the Lexington Herald-Leader reports. "They’re hoping for defeat to show that Frankfort Republicans’ lockstep efforts to eliminate abortion access almost entirely in the state has careened, fueled by a political agenda and not actual voter will."

Acquisto reports that Democrats are encouraged by a late-June poll conducted by Garin-Hart-Yang-Research Group, which found that 62% of Kentuckians oppose abortion bans without rape or incest exceptions.

The exceptions are popular with most Americans, according to a March Pew Research Center Poll which found that about 69% -- including 56% of Republicans -- say abortion should be legal when the pregnancy is a result of rape.

It is uncertain if the legislature would add rape and incest exceptions. Rep. Angie Hatton, D-Whitesburg, who Acquisto reports is just one of four remaining pro-life Democrats in Frankfort, said she thinks her largely pro-life constituency in Eastern Kentucky would support some exceptions. 

Hatton said it's time for a "bigger reckoning to be had about what the pro-life platform stands for," saying it should include policies that decrease demand for abortion, such as a living wage, access to health care and free day care, "things that cause families not to have to choose abortion."  

Republican state Sen. Whitney Westerfield of Crofton, in Christian County, told Acquisto that he thinks that the state has already spoken on this issue, as evidence by the election of Republican super-majorities in both the state House and Senate. 

Abortion on the ballot in other ways

The proposed amendment and the trigger law were sponsored by Rep. Joseph Fischer, R-Fort Thomas, who is challenging Justice Michelle Keller of Covington, a registered independent, for an eight-year term on the Kentucky Supreme Court.

The race is supposed to be nonpartisan, but Austin Horn of the Herald-Leader reports that Fisher "wants to signal to voters his partisan identity as much as he can" and offers examples of how he's accomplishing this goal within the judicial ethics rules.

Keller told Horn that Fisher's campaign strategy amounts to "cheating" the state constitution's requirement that judges be elected "on a nonpartisan basis" and that his campaign is emblematic of the Republican-controlled legislature's desire to "take over the courts." 

Northern Kentucky University political science professor Ryan Salzman told Horn that the race could be the most important in Kentucky this year, because Fisher could become the anti-abortion movement's "savior" if the court narrowly strikes down one or both abortion laws.

In a separate article, Horn reports on the race in Central Kentucky's 56th House District between Democrat Grayson Vandegrift, the mayor of Midway, and Rep. Daniel Fister, a Republican from Versailles, who have differing views on abortion.

Vandegrift has shared on Facebook the story of how he and his wife Katie considered aborting what would have been their second child, named Audrey, diagnosed with a fatal disease in the womb. They ended up not having to make that decision because Audrey died in her 18th week, Horn reports.  

Vandegrift wrote, “I don’t like abortion. I never will. But if elected to the state legislature I’ll make decisions that take into account the pain and suffering of people like Katie -- because we’ve learned since then that there are so many whose pain has only been magnified by short-sighted bills.”

Fister is a strong abortion opponent who was once a directors of the Kentucky Right to Life Association and rejoiced that "the voiceless have been heard" when Roe fell, Horn reports.

Another race to watch is between Sen. Karen Berg, D-Louisville, a physician who supports abortion rights and has been very vocal about her position, and Louisville Metro Councilman James Peden, who is running against her and has taken a more moderate approach, saying he supports the post-15-week ban. 

So far, Republican candidates for governor in 2023 all say they support the two laws blocked by the injunction, but Democratic Gov. Andy Beshear regularly says he is against it, citing the lack of exceptions for rape or incest. Beshear has said he generally supported Roe but not late-term abortion. 

Asked for position on abortion July 7, Beshear said, “I believe that Roe v. Wade had it generally right. . . . This ultimately should be a rare, but legal procedure. That there are reasonable restrictions that could be placed on it. I’ve always been against what people call a late-term abortion.”

Horn asked lawmakers and political experts if Kentucky Republicans will pay an electoral price for abortion policy that isn't in line with polls, and found that the answers largely depended on who he asked and what part of the trigger law you are talking about. One said because abortions are still legal for now, people have not felt the impact of the law, so political reaction to it will be delayed. 

Nationally, The Washington Post reports that Republicans hope the backlash to the Supreme Court decision will fade and that people will turn back to economic issues. This ongoing debate is giving hope to Democrats that this issue will drive more Democrats and swing voters to the polls, the Post reports. 

Joe Sonka and Morgan Watkins of the Louisville Courier Journal explore whether the Kentucky legislature will push for even more abortion restrictions, reporting that "Some Republican legislators and anti-abortion advocacy groups in several of these states with a current or pending ban have expressed support for going even further, calling for bills to either restrict support for women traveling out of state for the procedure or prohibit contraceptive methods like the emergency morning after pill or intrauterine devices (IUDs)." 

Also possible are fetal "personhood" laws, which declare that life begins at fertilization. The CJ writes that such laws "could also lead to serious legal jeopardy for in vitro fertilization (IVF) treatments with embryos, though past legislative efforts for this measure have failed in Frankfort."