With no exceptions for rape or incest, Kentucky's near-total abortion ban can force children as young as 9 to deliver a baby

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While pregnancy in very young girls is rare, it does happen. 

"In Kentucky, the two youngest patients to receive an abortion over the past two years were age 9. Under Kentucky law, sexual intercourse with a 9-year-old is considered first-degree rape," Deborah Yetter reports for the Louisville Courier Journal.

"In 2021, and again this year, one 9-year-old each year had a pregnancy terminated, according to data from the Kentucky Office of Vital Statistics obtained by The Courier Journal through an open records request. The records provide no other details about the individuals. In all, 34 girls ages 15 or younger received abortions in 2021, according to state statistics, with 16 generally regarded as the age where minors are able to consent to sexual intercourse."

As the laws stand today in Kentucky, those abortions would be illegal, even if a pregnancy resulted from rape and despite the age of a parson, Yetter notes. 

That's because a ban on almost all abortions in the state was triggered when the U.S. Supreme Court overturned Roe v Wade, the 1973 decision that created a constitutional right to abortion. The law has exceptions to prevent the woman's death or serious impairment of a life-sustaining organ; a law revived by the court decision bans abortion after six weeks of pregnancy.

A Louisville judge blocked the law pending resolution of a lawsuit against it, but a Pikeville judge on the Court of Appeals vacated that ruling, and the Supreme Court left it in place until it hears arguments in the case Nov. 15. The Nov. 8 ballot has a referendum that would make the case moot by making the state constitution say it guarantees no right to abortion or funding of it.

Yetter reports that such stringent abortion bans outrage abortion-rights advocates, including medical professionals who care for young girls.

"Do we expect a fourth-grader to carry a pregnancy to term, deliver and expect that child to carry on after this horror without permanent psychological trauma," asked Dr. Anne-Marie Amies Oelschlager, a University of Washington professor of pediatric and adolescent gynecology. "Are we really expecting this of our pregnant youth, even if the pregnancy may not result in death?"

Furthermore, Oelschlager said, young girls and teens aren't physically mature enough to carry a pregnancy to term, which increases risks to the patient as well as the fetus. Her comments were provided by the American College of Obstetricians and Gynecologists, which considers abortion to be essential health care.

Abortion opponents in Kentucky appear unwilling to allow exceptions beyond those in the trigger law. 

Rep. Joe Fischer, R-Fort Thomas, told a legislative committee in 2019 that the trigger law, which he was sponsoring, "will reflect what I think are Kentucky values and will protect all human life from the moment of conception." Fischer is running to unseat state Supreme Court Justice Michelle Keller in a nonpartisan election.

Addia Wuchner, executive director of the Kentucky Right to Life Association, declined to say whether an exception should be made for girls as young as 9 who become pregnant. Instead, she asked who was there to protect that child and whether the rape had been reported to the authorities. "It is still a life that has been formed," she told Yetter. "All life is sacred and we're in an area where this child, this unborn child, is being punished because of the father."

Planned Parenthood disagrees. 

“Every person, in every circumstance, deserves access to health care when and where they need it," Katie Rodihan, a spokeswoman for the six-state Planned Parenthood group that includes Kentucky, told Yetter. "Shame on lawmakers in Kentucky for abandoning victims of rape and incest ― including children ― and subjecting them to the immense trauma of forced pregnancy by their predator. This law is cruel and inhumane."

Yetter reports that Kentucky's abortion numbers for 2021 are not available, but in 2020, 4,104 abortions were performed, with 36 of the patients 15 or younger; 368 were 19 or younger, according to a state report.

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."

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.