Voters reject attempt to keep Ky. courts from finding a right to abortion in state constitution; Supreme Court hearing next week

Courier Journal map by Olivia Krauth, adapted by Ky. Health News; for the interactive version, click here. Note that the midpoint of the color range is not 50 percent, but the median of the high and low.

By Al Cross

Kentucky Health News

Kentucky courts will still be able to find a right to abortion in the state constitution, following voters' rejection of a proposed constitutional amendment Tuesday.

The defeat of the proposal, by about 5 percentage points, clears the way for a hearing next Tuesday by the state Supreme Court on a lawsuit by the state's two abortion clinics, aimed at getting a decision that could be Kentucky’s version of Roe v. Wade, the 1973 case that created a national right to abortion.

That’s what Republican state Rep. Joseph Fischer of Fort Thomas (who lost a race for the Supreme Court on Tuesday) was trying to prevent when he sponsored the 2021 bill that put the constitutional amendment on the ballot. And it was Fischer who sponsored the “trigger law” that went into effect when the U.S. Supreme Court overturned its landmark decision.

The trigger law bans abortion unless needed to save or prevent “substantial risk” to the woman’s life, or prevent permanent damage to a life-sustaining organ. It has no exceptions for rape or incest, which were once typical exceptions for most Republicans, or for threat to the woman’s health or cases of severe fetal abnormality.

Another law Fischer supported in 2019 bans abortion if fetal cardiac activity can be detected. That usually occurs in the sixth week of pregnancy, which is measured from the end of the last menstrual period, so at that point some pregnant women may not realize they are carrying a fetus.

In voting against Fischer’s amendment, Kentuckians, in effect, voted against Fischer’s laws. If they had passed the amendment, the Supreme Court case would have been moot.

Now the court will decide whether to reinstate the injunction that Jefferson Circuit Judge Mitch Perry issued. It blocked Fischer’s laws until a lawsuit brought by the state’s two abortion clinics could be tried, but Court of Appeals Judge Larry Thompson of Pikeville blocked the injunction, and a fractured Supreme Court let Thompson’s order stand.

In his injunction, Perry said that by passing the trigger law, the legislature “impermissibly delegated its legislative authority to a federal body,” and that the six-week ban is constitutionally suspect because the state Supreme Court has interpreted the first three sections of the state constitution to “protect an individual’s right to liberty and self-determination.”

Those sections, written in 1891, read in part: “All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned: First: The right of enjoying and defending their lives and liberties. Second: The right of worshipping Almighty God according to the dictates of their consciences. Third: The right of seeking and pursuing their safety and happiness. . . . Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority. . . . All men, when they form a social compact, are equal . . .“

Perry also made a practical point: The six-week ban would “potentially obligate the state to investigate the circumstances and conditions of every miscarriage that occurs in Kentucky. This would lead to an unprecedented level of intrusion and invasiveness . . . ”

And he cited Section 5 of the constitution, which guarantees religious freedom, and said the idea that human life begins at conception “is a distinctly Christian and Catholic belief. Other faiths hold a wide variety of views . . .” Several Jewish mothers in Louisville have filed suit against the law on those grounds, but that suit is not before the Supreme Court. It will only consider whether the injunction should be reinstated pending trial, but much of that decision will depend on the court's opinion on the underlying issue.

The court's ultimate decision could set the parameters for future legislation, and then the legislature could propose another constitutional amendment.

Kentucky Right to Life Executive Director Addia Wuchner issued a statement that said in part, “Today, we are disappointed. But tomorrow, we will be motivated. This work is too important to quit, and we look forward to the next phase of prolife advocacy in Kentucky.”

Amber Duke, interim executive director for the American Civil Liberties Union of Kentucky, said in a statement, “This is a victory for bodily autonomy and the right of all Kentuckians to make the best decisions for themselves, but the fight is not over. We will now continue our fight in state court to restore abortion access in the commonwealth.”

UPDATE, Nov. 11: The Courier Journal's Olivia Krauth analyzes the results, comparing them with past elections, and finds that a county's vote for Donald Trump in 2020 was more indicative of its vote on the amendment than its political party registration.