State Supreme Court keeps abortion ban in place; oral arguments to be heard Nov. 15, a week after voters may decide the issue

By Melissa Patrick

Kentucky Health News

A divided Supreme Court of Kentucky upheld Thursday an appeals-court ruling that made nearly all abortions illegal in Kentucky while a lawsuit on the issue moves through the court. But the voters may have the final say, in a referendum a week before the court is set to hear oral arguments in the case.

The American Civil Liberties Union, ACLU of Kentucky and Planned Parenthood Federation of America had sought emergency relief for the state's two abortion providers, EMW Women's Surgical Center and a Planned Parenthood clinic, both in Louisville.

They wanted the court to restore a Louisville judge's injunction that blocked two abortion bans the state legislature passed in 2019: a "trigger law" that took effect when the U.S. Supreme Court overturned Roe v. Wade, making abortion illegal in Kentucky except when the woman's life is threatened; and a ban on abortions after six weeks of pregnancy, about the time that fetal heart activity can be detected. 

Jefferson Circuit Judge Mitch Perry's injunction was based on his finding that the laws violate the rights to privacy, self-determination and religious freedom established by the state constitution and court decisions based on it. But the injunction was vacated by Court of Appeals Judge Larry Thompson of Pikeville, who said abortions performed while the case is pending "cannot be undone."

The court was divided. Only three of the seven justices (Robert Conley of Russell, Debra Lambert of Somerset and Laurance VanMeter of Lexington) fully concurred; the majority was made by Justice Michelle Keller of Fort Mitchell, who concurred in the result only and wrote a separate opinion, and Justice Shea Nickell, who joined in that opinion.

Justice Michelle Keller

Keller wrote that Thompson "not only failed to give appropriate deference to the trial court but also failed to undertake a thorough analysis that is required in a case of this magnitude, failing to even set forth the appropriate standard of review. That being said, remanding this matter to the Court of Appeals to engage in a proper analysis would only further delay the final resolution of these compelling issues."

Keller and Nickell said they shared many of the concerns voiced in the dissent by Chief Justice John Minton of Bowling Green and Justice Lisabeth Hughes of Louisville, the two members of the court who are retiring at the end of the year.

In an opinion written by Minton, they disagreed with the majority's finding that the issue did not present the "extraordinary cause" required for intervention in a pending case; they noted the importance of the case and said Court of Appeals Judge Larry Thompson of Pikeville had abused his discretion by vacating Jefferson Circuit Judge Mitch Perry's injunction. It said Thompson "failed to engage in any analysis regarding whether the circuit court abused its discretion" and the injunction should remain in effect while the case is decided.

"Failure to find extraordinary cause justifying interlocutory review under the circumstances presented here would constitute this court dodging its responsibility to settle legal issues of great legal importance facing the commonwealth," Minton wrote. "It is difficult to comprehend a more important or serious legal issue than legal access to abortion in the commonwealth."

Justice John Minton

Minton also wrote, "This court cannot turn a blind eye to the fact that this case involves one of the most contentious policy and political issues of our time. This case raises serious and important issues involving access to abortion, and movants make a compelling argument that women may suffer irreparable and permanent harm absent emergency relief from this court. And the attorney general also advances serious allegations of irreparable harm, alleging that any abortions performed during the pendency of this litigation cannot be reversed." Read the three opinions here.

The Supreme Court took the case from the Court of Appeals, as that court and all sides had requested, and scheduled oral arguments for Nov. 15. That is one week after the Nov. 8 election, which includes a ballot question that would add to the state constitution a statement that would negate Perry's findings, by saying that the constitution does not grant a right to an abortion or funding of it.

"We look forward to that expression of the will of the commonwealth," Keller wrote in her opinion.

Also on the Nov. 8 ballot is a nonpartisan race between registered independent Keller and state Rep. Joseph Fischer, R-Fort Thomas, who sponsored the proposed amendment and the trigger law. Four of the Supreme Court's seven seats are on the ballot. There are contested races for the seats that Minton and Hughes are giving up; Nickell is unopposed. 

Asked about the ruling, Democratic Gov. Andy Beshear, who generally favors abortion rights and is seeking re-election, again noted that neither of the two abortion bans have exceptions for rape or incest. 

"The Kentucky Supreme Court has left in place one of the most extremist laws across the United States," Beshear said. "It bans options for everyone, meaning that victims of rape and incest have absolutely no options and have to potentially carry their rapists child. It means a victim of incest. and we've seen young girls 10, 11, 12 violated by a family member has no options. I think that's wrong. And I think the majority of Kentuckians agree with me." 

Attorney General Daniel Cameron, who is seeking the Republican nomination to oppose Beshear and got Thompson to negate Perry's injunction, said in a statement, saying that since the U.S. Supreme Court has given abortion decisions back to the states, we "must allow our policymakers in the General Assembly to speak for the people they represent."

The ACLU said, “The Supreme Court’s decision to allow Kentucky’s abortion bans to remain in effect puts nearly a million people’s health care in jeopardy. Abortion is not only health care but also a critical individual freedom. Make no mistake: abortion bans result in tragic health outcomes and are a form of control over our bodies. Despite this setback, the fight continues. We will proceed with our case to restore and protect reproductive freedom in Kentucky. Politicians and the government should never have the authority to force a person to remain pregnant against their will.”