Does Ky. law protect in vitro fertilization? Depends on who's asked

State Rep. Lindsey Burke, D-Lexington, whose son was born through in
vitro fertilization, said state law doesn't protect the procedure. (LRC photo) 

By Sarah Ladd
Kentucky Lantern

None of the bills to explicitly protect in vitro fertilization in Kentucky got a hearing this legislative session, making them effectively dead on arrival.

With roughly eight months until the next session, some lawmakers and attorneys disagree on what protections exist for IVF under current Kentucky law.

Republican Sen. Whitney Westerfield — who has children thanks to IVF — believes there is an appetite in the General Assembly to pass specific IVF protections. The failure to do so, he said, was probably “a function of time.”

Westerfield filed a bill to protect the process on the filing deadline for Senate bills. His House and Senate colleagues who filed similar bills also did so right before or on the filing deadlines.

The issue, he noted, wasn’t on “anybody’s radar” until an Alabama Supreme Court decision — which came down right before the deadline to file Kentucky bills — seemingly complicated the treatment.

Westerfield, of Fruit Hill in Christian County, announced before the legislative session began that he would not seek re-electin this year.

 
‘They should always be preserved’

Westerfield and his wife, Amanda, are expecting triplets this summer. The three, as well as their 6-year-old son, were adopted as embryos — the result of someone going through IVF and donating eggs. The Westerfields also have a daughter who joined their family as a “traditional domestic adoption.” They have another embryo they are paying around $500 annually to preserve.

“I think they should always be preserved,” Westerfield said. “But I also understand not everybody holds that view. My son is one of those that was preserved, thankfully. These boys that are on the way were preserved.”

The Westerfields chose to have children this way because, had they gone through IVF themselves, “We were worried that we might have more than we could try to transfer on our own,” Westerfield said.

“We didn’t want to have so many left over that we couldn’t … bring to full-term birth ourselves and give a home to. And then you worry about making sure they end up in a home somewhere because we don’t want them destroyed. Not everybody wants to adopt an embryo and be pregnant. Some people do, thankfully.”

Even though the legislature didn’t pass the IVF-specific bills this year, it did pass House Bill 159, which Gov. Andy Beshear then signed into law. It gives health-care providers immunity from criminal charges for medical mistakes.

On the day HB 159 passed the Senate, Westerfield said he believed it would protect IVF by default because it broadly protects “providers.”

The law states: “A health-care provider providing health services shall be immune from criminal liability for any harm or damages alleged to arise from an act or omission relating to the provision of health services.”

Westerfield, who is also a lawyer, said this is “more comprehensive” than what he proposed to specifically protect IVF. “It covered everything mine covered and then some,” he said.

Ben Potash, a lawyer representing three Jewish women who are suing over Kentucky’s abortion law, believes HB 159 does not protect IVF since discarding extra eggs in the IVF process is a willful act.

HB 159 says “Nothing … limits any liability for gross negligence or wanton, willful, malicious, or intentional misconduct.”

 
‘No one really knows what the law is’

Potash believes the two topics — abortion and IVF — are too closely related to be separated. Going through IVF in Kentucky right now is “precarious,” he said. “No one really knows what the law is.”

Kentucky Attorney General Russell Coleman has called IVF “an incredible blessing for so many seeking to become parents,” and said “The plain language of Kentucky’s laws makes it clear that neither IVF nor the disposal of embryos created through IVF and not yet implanted are prohibited.”

But Potash says, “Making it civil, secular law that life begins at conception introduces all kinds of complications to IVF, to motherhood in general, to parenthood in general.”

Kentucky’s “Human Life Protection Act” — the trigger law that went into effect after the U.S. Supreme Court overturned Roe v. Wade in 2022 — states that an embryo is an “unborn human being” from egg fertilization to birth.

The 1973 Roe v. Wade decision established abortion as a constitutional right. Once that federal protection was gone, Kentucky’s law updated to all but ban abortion entirely, except in rare and life-threatening situations. 

Judith Daar, dean of Northern Kentucky University’s Chase College of Law and a legal expert on reproductive assistance, said that while “Many states have language in their statutes regarding abortion that declare life begins at conception or fertilization,” those laws also link abortion to pregnancy, which “is defined as an attachment of the embryo inside the mom.”

That is the case in Kentucky. The law states that “‘pregnant’ means the human female reproductive condition of having a living unborn human being within her body throughout the entire embryonic and fetal stages.”

“To the extent that all the abortion laws tether and condition the conduct on the existence of a pregnancy, then IVF really does escape application of the abortion laws, at least in the preimplantation stage when the embryos are still in the laboratory,” Daar explained. “That is not, per se, a pregnancy because it doesn’t meet the definition of the attachment of the embryo into the uterus.”

Because of this, Daar said, Kentucky doesn’t necessarily need to pass an explicit bill on IVF at this time: “There’s nothing that I’m aware of … that suggests that any aspect of IVF practice is illegal under Kentucky law.”

 
The IVF process

Dr. Sigal Klipstein, chair of the Ethics Committee of the American Society for Reproductive Medicine, said people need IVF for many reasons. Some seek it because of infertility — a man has little to no sperm or a woman does not ovulate, for example. Same-sex couples may undergo IVF as a way to have biological children, she said, or uncoupled people may seek that service for themselves.

“In a typical IVF cycle, a woman might take about 10 days of injections,” Klipstein explained. These are “little, under the skin injections, kind of like insulin needles.”

“They sort of bypass the system,” she said. “So instead of having enough hormone to release one egg, you might release five or 10 or 20 eggs.”

A final shot at the end of those 10 days triggers ovulation, Klipstein said. The patient then undergoes anesthesia and eggs are removed with a needle that enters through the vagina under ultrasound guidance.

Eggs are then mixed with sperm in a lab and grown for five to six days. The best one is then implanted into the uterus.

Usually, there are extra eggs leftover, Klipstein said. They can be donated, stored, discarded, or be placed in the uterus during a time that won’t result in pregnancy. This is called “compassionate transfer,” Klipstein explained. In this process, “you’re sort of more physiologically, more naturally, allowing the embryos to reabsorb into the body.”

Potash said the “routine” extra eggs make the process complicated if they are considered human beings by law. The Alabama Supreme Court set the precedent for that complication when it ruled in mid February that frozen embryos are children.

“It’s unrealistic and cost prohibitive, as well as I think a little cruel,” Potash said, “to make those mothers keep those fertilized ova on ice, essentially, forever.”

Klipstein agreed, and asked: What happens if someone stops paying or a storage facility closes? “Do you require them to have more babies than they want? I mean, I don’t think you can compel someone to get pregnant against their will to prevent them from discarding those embryos.”

“It would be nice if we had one embryo for one baby, and we could do it as a one to one ratio,” she added. “But, you know, medicine doesn’t work that way. And IVF doesn’t work that way.”

Westerfield has a different perspective. “It’s hard for me to imagine someone going into that process without an awareness of the cost,” he said.

IVF can cost between $15,000 and $30,000 per cycle, according to a 2023 article in Forbes. Storage can cost from $350 to $600 per year as well, the magazine reported.

“I don’t think anybody goes into that without knowing whether or not they either can afford it, or have insurance to cover it, or what have you,” Westerfield said.

He and his wife wouldn’t have adopted as many embryos as they did, he said, “if we thought we couldn’t afford to keep this one on ice, frozen.”

“We wouldn’t have done more than what we could transfer at a time,” he said. “We wouldn’t have adopted three; we would have adopted one or maybe two.”

Providers, parents in ‘limbo’

Sen. Cassie Chambers Armstrong, D-Louisville, filed one of several unsuccessful bills to protect IVF this session. She said she is “disappointed” that no specific protections passed.

It might be plausible, she said, that HB 159 “does provide protection to IVF.” But, she said: “I don’t think that it’s decisive.”

The new law deals with criminal and not civil prosecution. That makes it unlikely to be applied to IVF, NKU’s Daar said.

“Instances of physicians acting in a criminal manner in the IVF setting is virtually non-existent,” Daar said. “I’m not saying it never happens, but it’s very, very rare. So a bill that generalizes criminal immunity … would not have a tremendous impact, if any impact, on IVF because that conduct just doesn’t occur.”

For now, Chambers Armstrong is particularly worried about how providers view the law. She wants to spend the interim talking to those people ahead of the next session.

“If IVF providers feel as though they have protection and this bill gives that to them, they will continue to offer services,” she said. “If they are concerned that they’re going to be subject to criminal liability for just doing their jobs, I’m worried that we’re going to see a chilling of making those services available.”

Meanwhile, she does think the state should “repeal … language that people believe could give embryos rights,” she said. But: “I don’t believe this General Assembly is going to do that anytime soon. I hope that people are correct when they say that we can provide some level of protection to IVF with those statutes on the books.”

Rep. Daniel Grossberg, D-Louisville, said the legislature has left “women and medical professionals” in “limbo”. He filed one of the unsuccessful bills to protect the process, and the only one in the House.

“The message that (this) sends,” he said, “is that women in Kentucky don’t have control over their reproductive choices.”

 
‘Let’s be proactive’

Rep. Lindsey Burke, D-Lexington, has openly discussed her journey with assault, infertility, IVF, miscarriage and abortion. She told the Lantern she doesn’t believe IVF is truly protected under current law.

“As long as fetal personhood is enshrined in Kentucky law, IVF is at risk,” said Burke, who is an attorney and mother of a son whom she had after undergoing IVF.

She is also paying $100 per month to store an embryo, as she hopes for another child someday.

Burke would like to file legislation to get “better insurance coverage for reproductive care” next year. She went into debt around $60,000 to have her son, she said. And: “I don’t think that anybody should have to do that.”

Chambers Armstrong, who is also a lawyer, said “I’m not sure that we’re going to get an answer as to whether this bill provides the type of protection for IVF that we’re hoping (for) unless and until it is challenged in court and we get a decision from the court.” But she doesn’t want to wait on litigation.

“Let’s be proactive. Let’s go ahead and pass a law that is very clear that it’s protecting IVF services and make sure that folks know that they can continue to receive the care that they have been seeking,” Chambers Armstrong said.

That must wait until at least 2025.

State House kills bill that would have banned Covid-19 vaccine mandates, after it takes a fast, unusual trip through the Senate

Kentucky Health News

A bill that would have banned Covid-19 vaccines from being required for employment, student enrollment or activities, or medical treatment and licensing, died a quiet death in the state House after a fast and unusual trip through the Senate in the closing days of the legislative session.

The sponsor used misleading information in committee, some of her Republican colleagues made speeches on the Senate floor against it, and after it passed, her news release was changed because it cited a study that had been withdrawn from publication by a scientific journal. All in less than a week.

Sen. Lindsey Tichenor (LRC photo)

Senate Bill 295, sponsored by Sen. Lindsey Tichenor, R-Smithfield, passed the Senate 25-11 on March 26 but was never given a committee assignment in the House.

When Tichenor presented the bill to the Senate Health Services Committee, she said "mass vaccination mandates" have caused an "unprecedented rise . . . in sudden deaths among all ages" and said the number of "deaths and adverse events" reported to the federal Vaccine Adverse Event Reporting System (VAERS) "total more than all other vaccines combined" since the system started in 1990.

There have been no mass mandates ijn the U.S. for any the Covid-19 vaccines, though some employers and schools have required them. Anyone can file a report with VAERS, without any supporting documentation, and  claims are then evaluated by VAERS staff to determine if intervention is needed.

"Anti-vaccination fringe groups have attempted to spin false stories using VAERS data, adding to misinformation about the safety of Covid-19 vaccinations," reports Amy Dusto of Johns Hopkins University. The Centers for Disease Control and Prevention says:

• The benefits of Covid-19 vaccination continue to outweigh any potential risks.
• Severe reactions after Covid-19 vaccination are rare.
• CDC recommends everyone ages 6 months and older get vaccinated to protect against Covid-19 and its potentially severe complications.
• Millions of people in the United States have received Covid-19 vaccines under the most intense safety monitoring program in U.S. history.
• CDC, the U.S. Food and Drug Administration and other federal agencies continue to monitor the safety of Covid-19 vaccines.

Nevertheless, Sen. Donald Douglas of Nicholasville, a physician, praised Tichenor for filing the bill. "This is a place where most people would want to go," he said. "They don't want to take the heat." The committee passed the bill by a vote of 8-2.

On the Senate floor, Tichenor said the bill protects “individual liberties,” but some of her colleagues said employers, especially those in health care, should be able to require vaccination.

“With passage of this legislation, we’re saying a hospital cannot require their employees to have any Covid-19 vaccine,” said Senate President Pro Tempore David Givens, R-Greensburg.

Sen. Whitney Westerfield, R-Fruit Hill (Christian County), said the bill would tie business owners’ hands. “That’s wrong,” he said. “They might want to require this. They might absolutely not require this. They should be allowed to make that decision.” He added, “We should be very careful about bills” that boost conspiracy theories.

After the bill passed the Senate 25-11, the office of the Senate Republican majority issued a press release about it, but withdrew parts of it after being told that a study it cited "had been retracted by a scientific journal," report Alex Acquisto and Austin Horn of the Lexington Herald-Leader.

In the release, "Tichenor said the vaccine was 'ineffective and dangerous' and linked to a research paper buttressing her point, saying, 'Reports supporting the need for this legislation may be found here.' But that paper had been formally retracted on Feb. 26 for drawing 'unreliable' conclusions, 'concerns with the validity of some of the cited references,' as well as a 'misrepresentation' of data," Acquisto and Horn report. "Senate GOP staff later sent a statement from Tichenor calling it a 'simple error'." She also said the authors of the paper are filing a lawsuit for "unethical retraction."

Only one of the paper's seven authors "is currently employed at an academic institution," Acqutso and Horn report, and "that author, Stephanie Seneff, has long been an anti-vaccine advocate. She has made the false claim that the measles, mumps, and rubella vaccine causes autism."

Tichenor acknowledged Thursday that her bill was dead. Asked if she had tried to attach it to another bill, in order to get it before the House, she said, "I had tagged it on, but it didn't stick."

Information for this story was also gathered by Sarah Ladd of the Kentucky Lantern.

Legislature sends Beshear bill decriminalizing medical mistakes; some in vitro fertilization advocates say bill will protect it

By Sarah Ladd
Kentucky Lantern

A bill giving Kentucky’s health-care providers criminal immunity for medical mistakes — which one lawmaker thinks will enshrine protections for in vitro fertilization by default — is on its way to Gov. Andy Beshear’s desk.

House Bill 159, which would decriminalize medical mistakes made by health care providers, passed the House in February by a vote of 94-0. On Friday it cleared the Senate — also without dissent.

The bill follows a 2022 Tennessee case in which a nurse was found guilty after a patient died from a medical mistake. The conviction led to protests and resignations within the health care community, KFF Health News has reported.

The Kentucky Nurses Association says that if medical mistakes are criminalized, providers are less likely to report them.

“I’m all for responsibility for medical errors,” said Sen. Phillip Wheeler, R-Pikeville, who carried the bill to the Senate floor on the 54th day of the 60-day legislative session. “I think that that is an appropriate domain for civil justice and not for the criminal justice system.”

State Sen. Whitney Westerfield

Republican Sen. Whitney Westerfield, who in February filed a bill seeking to protect access to in vitro fertilization in Kentucky, said he believes HB 159 will accomplish his goal by default. His colleague, Sen. Cassie Chambers Armstrong, D-Louisville, filed a similar bill to protect IVF.

“Neither of our bills have advanced,” Westerfield said while voting in favor of HB 159, which he said will cover IVF access because of its “broad” definition of the word “providers.”

The criminal-liability bill, sponsored by Rep. Patrick Flannery, R-Olive Hill, protects “a person providing health services” who is appropriately licensed and/or certified.

Bills to protect access to IVF, which is used to treat infertility and can help other people trying to get pregnant to do so, came this session in response to a ruling from the Alabama Supreme Court stating that frozen embryos are children.

The ruling led to concerns that it could deter people in Alabama from attempting to conceive children via IVF, which sometimes involves freezing embryos for future attempts at insemination. Several clinics in Alabama, including the University of Alabama Birmingham, paused IVF treatments and embryo transfers in response to the ruling.

Westerfield, of Christian County, said House Bill 159 will protect IVF.

“I think this bill accomplishes that and does so without necessary amendments or changes,” Westerfield said. “And so as a proud father of now four IVF children, I’m proud to see this bill make final passage and head to the governor.”

As doctors plead for end to state abortion ban, legislators file bills to protect in vitro fertilization from court rulings like Alabama's

Dr. Virginia Stokes, an obstetrician-gynecologist, said she’s treated many conditions that required abortion to prevent sepsis and preserve patients’ fertility. (Kentucky Lantern photo by Sarah Ladd)

By Sarah Ladd

Kentucky Lantern

In response to a ruling from the Alabama Supreme Court stating that frozen embryos are children, Kentucky state senators from both parties have filed bills aimed at protecting access to in vitro fertilization in Kentucky.

Meanwhile, nearly 300 Kentucky health-care providers and medical students signed a letter asking legislators to restore access to abortion in the state, saying its ban on abortion handicaps their ability to provide comprehensive care.

Republican Sen. Whitney Westerfield of Christian County, a staunch opponent of abortion, filed a bill Wednesday saying that any facility or “procedure related to in vitro fertilization shall not be liable” for damages “to a patient or patient’s surviving spouse or partner resulting from the loss of a human embryo, except in cases of negligence or wanton, willful, malicious or intentional misconduct.”

It also protects health care providers “performing any procedure” related to IVF from criminal charges. The day before, Sen. Cassie Chambers Armstrong, a Louisville Democrat, filed a similar bill. The Alabama Legislature passed similar legislation Thursday.

Alabama, Kentucky and at least eight other states have laws saying human life begins at conception, with the fertilization of an egg by a sperm cell; Kentucky's law speaks of the "unborn human being."

IVF is used to treat infertility, and can help other people trying to get pregnant to do so, according to the Mayo Clinic. About 2 percent of U.S. births are results of the procedure. It sometimes involves freezing embryos for future attempts at insemination; damage to frozen embryos at a fertility clinic prompted the lawsuit that led to the Alabana ruling.

Westerfield’s filing comes as he and his wife are expecting triplets, which he announced in January. He said at that time in a Senate floor speech that they adopted and transferred embryos for the pregnancy. His 6-year-old son is an “embryo adoption” baby, he said.

At a Thursday news conference, Democratic Gov. Andy Beshear said the Alabama ruling “is what happens . . . when you embrace extremism.”

He cited Kentucky’s near-total abortion ban as another example: “Women that have non-viable pregnancies still have to oftentimes carry that pregnancy to term knowing they’re going to hear their child die moments afterwards if it hasn’t already happened.”  

Kentucky bans abortion except in cases of threat to the woman's life or of serious, permanent damage to a life-sustaining organ, under a law triggered by the U.S. Supreme Court's 2022 overturn of Roe v. Wade, the 1973 decision that created a constitutional right to abortion. 

The ban causes “devastating consequences” for patients, Louisville’s Dr. Marjorie Fitzgerald said at the health-care providers' event. “We are losing obstetricians who will not practice in our state,” a nd because of the restrictions, “Doctors are violating their Hippocratic oath to do no harm.”

Fitzgerald was joined in the Capitol Annex by Democratic lawmakers, other medical providers and a second-year medical student in Frankfort to discuss the letter written by the Kentucky Physicians for Reproductive Freedom and signed by 280 providers.

They detailed the complex nature of medical decisions that lead to abortions and slammed lawmakers for restricting their ability to provide that care.

Dr. Nancy Newman, a board-certified obstetrician, said she would not now come to the state because of a “culture of fear that our legislature has created” in which providers have to decide between jail time and what their patients need. “How do you practice medicine in a culture of fear? I don’t think you can.”

Dr. Michelle Elisburg, a Louisville pediatrician, told the story of a 14-year-old patient who was raped by a 60-year-old landlord and got pregnant.

“She had the baby and then dropped out of high school to get a job” to support herself and her child, Elisburg said. “Now both mother and child have multiple risk factors for poor health, educational and vocational outcomes, requiring more financial assistance from the state.”

Elisburg said that as a Jewish physician, she’s governed not only by the Hippocratic oath to do no harm, but also a faith-based oath to act in the best interest of her patients: “As a physician in Kentucky, I am now being forced to make impossible choices that put my professional ethics and my faith in direct conflict with the law.”

Urooj Nasim, who attends the University of Louisville medical school and said she spoke only for herself, said abortion bans may keep her and her classmates from getting the hands-on training they need to become obstetrician-gyneciogists and tackle Kentucky’s high rates of maternal mortality.

“In order to make the best calls for the patients of my future, I need to receive high quality training and all of the tools and procedures available,” Nasim said. “And in a state where physicians live in fear of being prosecuted for delivering standard care, that is just not possible.”

The American College of Obstetricians and Gynecologists says “In states with abortion bans, medical students and residents are not able to receive the hands-on training they need in order to provide patients with comprehensive care.”

Nasim, who was born in St. Louis and lived in Somerset until she was 8, told the Lantern she is “undecided” on her specialty path but was “moved by that patient population” when she worked with an obstetrician previously.

“I’m a very … mission-driven medical student,” she said. “I really want to help patients with a lot of the social factors that affect their health. And OB is a really great specialty to do that in.”

Latest in a line of protests

The Thursday letter is the latest in a long line of efforts to protest Kentucky’s tight abortion bans.

In 2022, Kentucky voters defeated a constitutional amendment that would have keptt courts from finding a right to an abortion in the state constitution.

In late 2023, a Kentucky woman sued for the right to access abortion and end an unwanted pregnancy, but dropped the lawsuit when the fetus lost cardiac activity.

Republicans and Democrats have filed bills seeking to loosen or undo Kentucky’s abortion bans, to no avail.

Several anti-abortion lawmakers have focused their efforts during the 2024 session on making Kentucky a safer place to give birth and codifying support for expectant parents.

This week state Rep. Ken Fleming, R-Louisville, filed a bill seeking rape and incest exceptions to Kentucky’s abortion bans — but only in the fist six weeks of pregnancy

Newman, an obstetrician, said “Most women don’t even know that they’re pregnant by six weeks,”  an in case of assault, “The victim likely may not even tell anyone before six weeks.”

Dr. Virginia Stokes, a board-certified obstetrician-gynecologist, said she’s treated many conditions in her tenure as a physician that required abortion — placenta previa, first and second trimester ectopic pregnancies, preterm rupture of membranes, cancer, sepsis and more.

A lack of early interventions, she said, can cause “total body sepsis and death due to the sepsis. And if death is avoided, there is a frequent loss of fertility due to disruption of the uterus.”

“The fetus will not survive if the mother doesn’t survive,” Stokes said.

In such cases she’s treated, she said, these are “gut wrenching decisions with no choice to be made” involving “very much wanted and cherished pregnancies.”

“There are lots of really bad things that can happen between six and 12 weeks,” Stokes added. “and we need to have permission to take care of those patients.”

“I am pro-life,” Stokes said. “I am for saving the life of these women who have these early pregnancy complications that require, unfortunately, a cessation of the pregnancy …. As an OB-GYN, my first priority is the life of my female patient. Please don’t tie my hands.”

Bill filed in Kentucky that would allow judges to temporarily take guns from those at risk of harming themselves or others

Sen. Whitney Westerfield (Legislative photo)

By Sarah Ladd
Kentucky Lantern

Admitting it faces a “tough uphill climb,” Republican state Sen. Whitney Westerfield filed a bill Jan. 25 that would allow judges to temporarily remove firearms from Kentuckians at risk of harming themselves or others.

“There is more support for it than you hear,” Westerfield said of his measure, which he calls the Crisis Aversion and Rights Retention Orders bill, or CARR.

Westerfield, of Christian County, said Senate Bill 13 is the “cleanest” version and comes after feedback from his colleagues during a December interim hearing before the Joint Committee on Judiciary.

Draft language of the bill says:

• Law enforcement cannot enter a person’s home “or interior premises” to gather their guns unless that person needs and requests assistance in doing so.
• Police must give a receipt to the respondent detailing what guns were taken.
• While the CARR order is in effect, the respondent cannot possess or buy guns.
• The court must tell the respondent that they are not being charged with a crime and that they have the right to rebuttal. 

“We don’t want to take away guns from people who are law-abiding citizens,” Westerfield said Thursday to a supporter rally. “We want to step in temporarily to keep people safe. We don’t want it to be abused. We want to do something responsible, constitutional, to keep people safe. That’s what CARR does.”

The bill has four co-sponsors, all Democrats, led by Sen. David Yates of Louisville. He says judges who are entrusted with complicated child-custody situations can also be trusted to know when people can’t be trusted to have guns.

“This is not a gun-grabbing bill,” said Yates. “Public safety has got to be a top priority. And right now, we are in a crisis.”

The other Democratic sponsors are Sens. Carrie Chambers Armstrong and Denise Harper Angel of Louisville and Reginald Thomas of Lexington.

Sheila Schuster, a licensed psychologist and the executive director of the Kentucky Mental Health Coalition, previously told the Lantern that “People with a mental illness are 10 times more likely to be a victim of violent crime than to be a perpetrator.”

She also said suicidal people taking their lives happens at an “astronomical percentage higher if there’s a gun within reach than if there’s not.”

The nonprofit Whitney Strong, which works to end gun violence, reports that a majority of gun deaths in Kentucky were suicide in 2021 — 534 compared to 364 homicides. That same year, there was a suicide by firearm every 16 hours in Kentucky, according to Whitney Strong data shared Thursday. The National Suicide Prevention Lifeline is 988.

Westerfield called his bill “constitutionally sound” and said he hopes it gets a hearing this session. As of Friday, Jan. 26, the bill was still in the Senate Committee on Committees, made up of the chanber's leaders. Westerfield is chairman of the Judiciary Committee.

Bipartisan bill would allow guns to be taken from people judged to be at risk of hurting themselves or others; opposition voiced

This story mentions suicide. If you or someone you know is contemplating suicide, please call or text the National Suicide Prevention Lifeline at 988.

By Sarah Ladd
Kentucky Lantern

A Republican-backed draft bill aimed at temporarily removing firearms from Kentuckians at risk of harming themselves or others garnered mixed reactions from the Interim Joint Committee on Judiciary Friday morning.

State Sen. Whitney Westerfield (Legislative photo)

Republican Sen. Whitney Westerfield of Christian County said he will introduce t​he Crisis Aversion and Rights Retention Orders bill, or CARR, because of shootings that left children dead and people injured.

“The law has to allow us to protect people,” Westerfield told the House-Senate committee Friday. “I feel like it’s my obligation, and though I can’t speak for you, I believe it is your obligation, to not be afraid to have difficult conversations about the toughest issues that people of Kentucky face.”

Such laws have been enacted in 19 states, Louisville's WDRB reports. The nonprofit Whitney/Strong, formed by a Cincinnati woman to fight gun violence, says CARR generally works like this: 

• A concerned community member brings evidence about potential harm to one’s self or others, and law enforcement can then file a legal petition to remove that person’s guns temporarily.
• A judge will “approve or deny the temporary transfer petition after conducting a strict, independent judicial review.”
• If the judge grants the petition, guns belonging to the person in question are handed over temporarily to law enforcement or “a trusted person outside of the owner’s household.”
• A hearing is then held to determine next steps, which may include “identifying opportunities for important support services for the individual in crisis.”
• Once the person is not in crisis, the guns are returned.

It’s unclear what Kentucky’s specific legislation would look like. Westerfield is working on two draft options, he said, which may “change a lot.”

One version of the bill includes the option for law enforcement to approach the person in question and tell them someone brought concerns forward about their safety or the safety of others.

“It gives the respondent the option,” Westerfield explained. “You can have a hearing within X number of hours, near immediate. Keep your guns until then, not keep your guns — that’s up in the air. Or, you can give us your guns now, and we’ll have a hearing in a week.”

“The respondent has the burden of defending that in that particular case,” he said. Timelines are adjustable, he added, since there may be practical problems getting a hearing so soon.

There are other potential problems, Westerfield said.

“If you tell someone that you fear has … a mental-health issue, or a trauma, something that you’re worried they’re about to break, and then you don’t act with some near immediacy, you might actually provoke the act,” he said. “That’s the concern. And you’re balancing that risk and that concern with the Second Amendment right that they have and no one disputes that they have.”

The second version of Westerfield's proposal includes an ex parte hearing, in which the judge would hold without the gun owner present.

This version “still has the law-enforcement steps,” Westerfield said. “So, it’s not just anybody on a whim asking for a judge to get your guns. There has to be some articulated, specific reasons” for the move.

Westerfield said whatever version of bill he files will be “meaningfully different in a couple of ways” from so-called “red flag” laws. “First of all, the timelines are shorter,” he said. “The burden of proof is going to be higher.”

State Rep. Savannah Maddox (Legislative photo)

Rep. Savannah Maddox, R-Dry Ridge, reiterated her “longstanding opposition to this proposal” and concern that it has the potential to violate constitutional rights such as due process and protection against government search and seizure.

“When law enforcement comes to seize the firearms, do they automatically know where to find them?” she asked. “Are they told where to find them? Do they dig through the entirety of the house?” She said this could lead to a registry of some kind.

Westerfield said he isn’t proposing any kind of “search” or “ransacking of a home,” and “I think it’s on the honor system.”

Maddox said, “We must fervently resist any effort to pass gun-control legislation. And we must be serious about analyzing the data and putting a stop to these ineffective policies that put innocent citizens in harm’s way. And we have to encourage privately held entities to do the same.”

Whitney Austin, who co-founded Whitney Strong after surviving a mass shooting in Cincinnati, told the panel that “we know that misuse of firearms is not tied to law-abiding, mentally well gun owners. CARR was not created for them. CARR was created to surgically identify the small subset of gun owners, including those in lawful possession of a firearm, who are on the brink of misusing their guns to harm themselves or others.”

Sheila Schuster, a licensed psychologist and executive director of the Kentucky Mental Health Coalition, told the Lantern that she supports CARR, but “The truth is that people with a mental illness are 10 times more likely to be a victim of violent crime than to be a perpetrator.”

She explained, “At the point that someone commits an act, particularly hurting someone else, it’s very likely that they are suffering with rage, with paranoia and in terms of feeling like somebody has done something to wrong them and they’re gonna (get) revenge.”

Schuster added that suicidal people taking their lives happen at an “astronomical percentage higher if there’s a gun within reach than if there’s not.”

In a written statement to the lawmakers, Schuster said: “As a psychologist and mental health advocate, I am painfully aware of the stigma of mental illness and the confusion in the minds of many people that mass shooters are undoubtedly mentally ill. This is not the case and the CARR legislation does a very good job of not adding to nor reinforcing that false narrative.”

Kentucky has a law that requires mental-health professionals to warn potential victims if a client makes a threat to someone’s safety. Kentuckians who are mentally ill and at risk of harming themselves or others and can benefit from treatment can be involuntarily hospitalized if that's the least restrictive mode of treatment available.

Support at the committee meeting came mainly from Jefferson County. Westerfield's intended co-sponsor is Sen. David Yates, D-Louisville. Rep. Pamela Stevenson of Louisville, this year's Democratic candidate for attormney general, endorsed CARR, saying “with every right there’s a responsibility. . . . We’ve got to be brave enough to not let people just die nilly-willy.”

Jeffersontown Police Chief Richard Sanders endorsed CARR, saying police are “faced with things today that I’ve never seen before. . . . One of the biggest problems we face in law enforcement is people suffering from mental illness.” Some people, he said, “shouldn’t have access to a weapon.”

State's first detailed report on domestic-violence cases has a wealth of data on how courts and law enforcement handle them

The report's court data is by area development district, not by judge or county, but it has data on how individual law-enforcement agencies served emergency protective orders. (Map from report, adapted by KHN; to enlarge, click on it.)

Kentucky Health News

"Kentucky has long had a problem with domestic violence," the Lexington Herald-Leader reports. "A 2012 survey found that 45% of women and 35% of men" in the state have been victims of domestic violence, sexual violence or stalking, "according to a new report released Friday, marking the first time the commonwealth has ever tracked the data. Now the commonwealth will begin to dig into the details with a debut domestic-violence report that will set a baseline for police reports, protective orders issues, court cases and other information."

The 207-page report has a wealth of information about how domestic violence is handled by courts and law-enforcement agencies at regional and local levels. It covers the 14,199 charges and 8,867 arrests related to domestic violence in 2022, and the outome of the 19,986 petitions courts received for emergency protective orders in criminal and civil cases.

For example, it gives the average number of days that it takes individual law-enforcement agencies to serve EPOs on people accused of domestic violence or threats of violence, based on reports by the agencies. Statewide, the average is 2.22 days, but in many counties, especially in Appalachian Kentucky, service is much slower, perhaps putting potential victims at greater risk.

Law-enforcement agencies that averaged 10 days or more (excluding those with fewer than 10 EPOs served) to serve EPOs were: Adair County sheriff (12 days), Bell County sheriff (13), Breckinridge County sheriff (12), Calloway County sheriff (14), Corbin Police Department (19), Garrard County sheriff (15), Laurel County sheriff (10), Lawrence County sheriff (11), Martin County sheriff (11), McCreary County sheriff (15), Perry County sheriff (10), Rockcastle County sheriff (15), Spencer County sheriff (13), Wayne County sheriff (10), Whitley County sheriff (12), Williamsburg Police Department (10); and Wolfe County sheriff (13).

Agencies that averaged 7 days or more (excluding those with fewer than 10 EPOs served) were: Anderson County Sheriff's Department (8 days), Danville Police Department (8), Estill County sheriff (9), Fayette County sheriff (7), Franklin County sheriff (7), Grayson County sheriff (7), Harrison County sheriff (7), Jefferson County sheriff (7), Jessamine County sheriff (7), Knox County sheriff (9), Letcher County sherifff (7), Lincoln County sheriff (7), Marshall County sheriff (7), Pendleton County sheriff (8), Pulaski County sheriff (8), Russell County sheriff (7), and Todd County sheriff (9).

Data on how courts handle domestic violence is not given by judge, court or jurisdiction, but by the state's 15 area development districts.

It shows that judges in the Lincoln Trail ADD (Meade, Breckinridge, Grayson, Hardin, LaRue, Marion, Nelson and Washington counties) approved only 40 percent of the petitions for EPOs regarding domestic violence, and 31 percent of those for tempotrary interpersonal protective orders.

Judges in the Northern Kentucky ADD (Boone, Kenton, Campbell, Carroll, Gallatin, Owen, Grant and Pendleton counties) had the next lowest approval rates, 63 and 45 percent. The statewide averages, respectively, were 72 and 60 percent.

In divorce and other civil cases where domestic violence was alleged, judges in the Cumberland Valley ADD (Jackson, Rockcastle, Laurel, Clay, Knox, Whitley, Bell and Harlan counties) had the lowest approval rate, 16.9%. Lincoln Trail was second-lowest at 19.8%, just ahead of the Kentucky River ADD (Wolfe, Owsley, Lee, Breathitt, Leslie, Perry, Knott, and Letcher counties), at 19.9%.

In civil cases where other interpersonal violence was alleged, judges in the Gateway ADD (Bath, Montgomery, Menifee, Rowan and Morgan counties) had the lowest approval rate, 9.1%. The next lowest rate, 12 percent, was in the adjoining Fivco ADD (Boyd, Carter, Elliott, Greenup and Lawrence counties). It was 14.9% in the Cumberland Valley ADD.

Generally, judges in the Bluegrass, Purchase and Green River ADDs were the most likely to issue protective orders.

The report was required by a 2022 law sponsored by state Sen. Whitney Westerfield, a Republican from Christian County. "Before this report, domestic violence advocacy groups had used a newspaper clipping service to keep track of domestic violence homicides," the Herald-Leader reports.

Westerfield, chair of the Senate Judiciary Committee, learned of the lack of centralized reporting from Herald-Leader Opinion Editor Linda Blackford. “It’s just unacceptable,” he told her as the bill mved through the legislature. “We can’t make informed public policy decisions without good information.”

Bill to ban gender-affirming care for youth passes after advocates scramble and maneuver to quash bipartisan Senate changes

UPDATE, March 24: Beshear vetoed the bill.

By Melissa Patrick
Kentucky Health News

A revised bill with language to ban gender-affirming care for Kentucky's transgender youth moved quickly through both houses of the General Assembly Thursday and is on Gov. Andy Beshear's desk.

Even if the Democratic governor vetoes the bill, as is expected, the supermajority of Republicans in the legislature can override the veto when they return on March 29 and 30. 

Changes made to Senate Bill 150, sponsored by Sen. Max Wise, R-Campbellsville, were approved in a hastily called meeting of the House Education Committee, which approved it 16-5 with Republican Rep. Killian Timoney of Nicholasville voting "no" with the four Democrats on the committee.

Soon after, the amended bill passed the House 75-22, despite more than two hours of Democrats speaking against it.

SB 150 moved quickly to the Senate for concurrence with the House changes. It passed 30-7 to shouts and obscenities yelled from the gallery at legislators. Sen. Danny Carroll of Benton was the only Republican to vote against the bill and Sen. Robin Webb of Grayson, was the only Democrat for it.

The night before, Carroll had narrowly succeeded in watering down a House bill that would limit gender-affirming care, but after his floor amendment passed 19-17 the Senate laid HB 470 on the clerk's desk and Wise worked with the House to put most of the original bill into SB 150.

The amended version of SB 150 prohibits gender-affirming medical care for trans youth, including gender-affirming surgery or puberty-blocking hormones. It allows health-care providers to de-transition youth who are already taking such hormones, which would require them to taper them off of the drugs. It also provides exemptions for youth who have a diagnosed sexual-development disorder. 

Providers who violate the law would have their licenses revoked, and youth who claim injury as a result of gender-affirming care could fule suit to recover damages until they turn 30 years old or within three years from the time they discovery the injury. The normal deadline for a lawsuit is one year.

SB 150 also includes its original provisions to prohibit schools from requiring teachers to use a trans student's preferred pronouns and requires schools to notify parents about any content related to sexuality. It also added content from HB 177, which does not allow any sex education to children in grades five and below and bans all students from receiving instruction that explores "gender identity, gender expression or sexual orientation."

Carroll speaks on SB 150. (Legislative Research Comm. photo) 

Carroll's revised bill likewise prohibited surgical medical treatments for trans youth, but unlike allowed some nonsurgical medical-treatment options. His change was supported by all seven Democratic senators and 12 of the 30 Republicans. Seven of them voted the other way when Wise's bill came back from the House. It passed 30-7.

Republicans who voted with Carroll on his amendment but against him on the SB 150 were Jared Carpenter of Berea, Matthew Deneen of Elizabethtown, President Pro Tem David Givens of Greensburg, Jason Howell of Murray, Amanda Mays Bledsoe of Lexington, Chris McDamiel of Ryland Heights, Stephen Meredith of Leitchfield, Mike Nemes of Louisville, Brandon Smith of Hazard, Brandon Storm of London and Whitney Westrefield of Fruit Hill (Christian County). 

Westerfield said his yes vote was "reluctant." He said SB 150 was better than HB 470 largely because it allows doctors to talk freely with their patients about their medical concerns without fear of liability.  

Carroll, explaining his no vote, said, "We know that most kids that are struggling with gender dysphoria decide to stay the gender that they are. It's a phase that they go through, [and for] some it's not. What would it hurt to allow doctors to have access to these puberty blockers to give these kids time to work through the issues that they face? Why can't we trust our doctors, as we do for every other issue, to guide us through these things?"

Sen. Karen Berg, D-Louisville, whose trans son Henry died by suicide in December, said of SB 150, "This is absolutely willful hate for a small group of people that are the weakest and most vulnerable among us."

During the House floor debate, Rep. Chad Aull, D-Lexington, reminded the lawmakers that nearly half of LGBTQ individuals have seriously considered suicide and that percentage is much higher with transgender children. "If this legislation causes one child in Kentucky to consider or to take their own live, this is a wrong piece of legislation," he said.

Terry Brooks, executive director of Kentucky Youth Advocates, issued a statement calling the speedy passage of SB 150 "parliamentary shenanigans" and that the genesis of the measure "springs from a national agenda of fearmongering."   

"Passage of SB 150, even with the amendment, means that kids lose access to much needed health and mental health supports. It means that families lose vital rights. And it means that Frankfort Republicans – save the courageous Representatives Banta, Dietz, Moser, and Timoney and Senator Carroll, who refused to vote in support of the measure – lose their long-held core governing identity. That is a lose-lose-lose trifecta for us all," he said. 

Senate Majority Floor Leader Sen. Damon Thayer, R-Georgetown, who voted for the bill, said SB 150's anti-trans provisions were modeled after a law in South Dakota. 

Rep. Kim Moser, R-Taylor Mill, while explaining her "pass" vote said, "I'm concerned that it doesn't comment enough on the mental-health treatment. . . . I really would like to see that we are allowing for mental-health treatment, watchful waiting and making sure that we're supporting the families who are going through this issue. I'm passing today because we want to protect children on all sides of this issue." Moser is chair of the House Health Services Committee.

Tamarra Wieder, state director for Planned Parenthood Alliance Advocates, voiced her disappointment: "SB 150 is deliberately designed to create a culture war across this commonwealth. It has nothing to do with parental rights. It has nothing to do with caring for kids. What it does is go against the guidance of every major medical association in this state. It replaces our physicians with politicians and places our trans kids' lives on the line." 

Transgender bill awaits a vote in the Senate after an unusual bipartisan vote waters it down; outcome remains uncertain

UPDATE, 6:50 p.m. March 16: The Senate agreed to the changes made to Senate Bill 150 and passed it on a vote of 30-7. It now goes to Gov. Andy Beshear's desk for his consideration. 

UPDATE, 4:44 p.m. March 16: The House passed Senate Bill 150 with an amendment that included some of the provisions of  House Bill 470 on a vote of  75-22  It now goes to the Senate for concurrence or non-concurrence. 

UPDATE, 1:55 p.m. March 16: A House committee approved a substitute Senate Bill 150 that keeps some of the House-passed provisions of House Bill 470. If passed by the House the revised SB 150 could become the vehicle for House-Senate negotiations later today. The Lexington Herald-Leader has a story.

By Melissa Patrick
Kentucky Health News

The state Senate voted 19-17 Wednesday night to water down a House bill that would limit gender-affirming medical care for Kentucky's minors, but a vote on the revised version was delayed until Thursday. 

Sen. Danny Carroll

House Bill 447, sponsored by Rep. Jennifer Decker, R-Waddy (Shelby County), was called up for a vote with five floor amendments proposed. All but Floor Amendment 2, submitted by Sen. Danny Carroll, R-Benton, were withdrawn.

Carroll's wide-ranging amendment got the votes of 12 of the 30 Republican senators and all seven of the chanber's Democats. The Republican majority generally does not advance bills that are not supported by most Republican senators.

Senate President Robert Stivers, who voted against the bill, told the Lexington Herald-Leader that he couldn't predict what the Senate would do on the issue. “I think there was a lack of knowledge as to what all the amendments in the subject matter meant,” he said. “This is not the easiest of subject-matter topics.”

Like Decker's bill, Carroll's measure still prohibits surgical medical treatments for trans youth. However, it would allow some nonsurgical medical treatment options with the consent of the child's parent or legal guardian.

In order to qualify for the nonsurgical medical treatment, the child must have a medical diagnosis of gender dysphoria and the treatment must be provided by a licensed physician who is appropriately trained and experienced in providing it. It also calls for the child to be under the care of a clinical psychologist or psychiatrist. 

The revised bill defines which reversable puberty-blocking drugs are allowed and says treatment shall not include cross-sex hormones, like testosterone or estrogen, in amounts that are larger or more potent that would naturally be found in a healthy person of the same age and sex.  

It says all care must meet evidence-based medical standards for treatment of children with gender dysphoria and include mental-health services that address a  person's sex or gender but don't promote gender transition. 

Carroll's amendment removed the original bill's provisions that would have blocked a transgender youth from legally changing their name or birth certificate. It kept in place language from two bills that were added in a Senate committee: Teachers would not be required to use a student's preferred pronouns, and parents would gain more say about sex education and discussions about sexual orientation in schools would be prohibited. 

Besides Stivers, others voting against the amendment were Republican Sens. Gary Boswell of Owensboro, Donald Douglas of Nicholasville; Shelley Funke Frommeyer of Alexandria; Rick Girdler of Somerset; Jimmy Higdon of Lebanon, Robby Mills of Henderson, John Schickel of Union, Adrienne Southworth of Lawrenceburg, Damon Thayer of Georgetown; Lindsey Tichenor of Smithfield; Johnnie Turner of Harlan; Stephen West of Paris; Phillip Wheeler of Pikeville; Gex Williams pf Verona; Mike Wilson of Bowling Green, and Max Wise of Campbellsville. 

If the Senate passes the amended bill on Thursday, that will give the chambers a few hours to work out their differences and send the bill to the governor's desk ahead of the veto period. Democratic Gov. Andy Beshear is expected to veto the bill if he gets it. The supermajority of Republicans could easily override a veto, but only if the bill gains final passage on Thursday.

Even before the latest overhaul of the bill made in the Senate, the bill had already undergone several changes. 

The bill that passed out of the House on a 75-22 vote would have banned any treatment that supported gender transition for Kentucky's minors, including puberty-blocking hormones and gender re-assignment surgery. It also included a 30-year window for lawsuits against health-care providers who provided any gender-affirming care to minors, among other things. Changes from the original bill that were made in committee removed mental health care providers from the list  of providers who couldn't treat youth seeking gender affirming care.

The Senate Families and Children Committee added more changes to the bill March 14, including the addition of Senate Bill 150, sponsored by Sen. Max Wise, R-Campbellsville, which prohibits schools from requiring teachers to use a trans student's preferred pronouns and requires schools to notify parents about any content related to sexuality. It also included content from HB 177, sponsored by Rep. Shane Baker, R-Somerset, which does not allow any sex education to children in grades five and below and bans all students from receiving instruction that explores "gender identity, gender expression or sexual orientation." These changes remained in Carroll's amended version of the bill. 

The amended bill passed out of the committee 6-3. Carroll and fellow Republicans Whitney Westerfield of Fruit Hill (Christian County), Julie Raque Adams of Louisville voted "yes" but called for significant changes in the final version.

“I’m extremely uncomfortable putting myself in the place where a doctor should be. I don't have the training. I don't have the knowledge to make decisions,” said Carroll. “However, I feel a complete obligation to protect our kids. I too don't like the bill. I hate the tone of the bill. I think we could have accomplished what we needed to accomplish without going so far." 

Abortion question on Kentucky's Nov. 8 ballot may be confusing, but it becomes clearer when you look at the possible outcomes

Confusion about the ballot question could stem partly from
the opening quotation mark, which is in the wrong place (it
should follow the colon). The style obscures the substance.

By Al Cross
Kentucky Health News

FRANKFORT, Ky. – What would it mean if Kentucky voters changed the state constitution Nov. 8 to say that nothing in the document shall be construed to secure or protect a right to abortion, or funding of it?

It means Kentucky judges would not be allowed to find in the state's basic law the same sort of right that the U.S. Supreme Court found in the federal constitution almost 50 years ago – and erased this year in the Dobbs v. Jackson Women's Health Organization case.

Passage of the amendment would leave abortion law up to the General Assembly. The legislature put the amendment on the ballot because legislators thought some Kentucky judges might construe the state constitution's rights to privacy, self-determination and religious freedom to guarantee that women have at least a limited right to abort a pregnancy.

That's pretty much what Jefferson Circuit Judge Mitch Perry did this summer when he issued an injunction blocking Kentucky's "trigger law" banning almost all abortions. The law had taken effect June 24, when the Supreme Court overturned its 1973 Roe v. Wade decision. Perry's order was blocked, pending a final decision by the state Supreme Court. The state's high court delayed oral arguments in the case until Nov. 15, a week after the election.

If voters approve the amendment, the case would be moot. If they defeat it, the court could issue its own version of Roe v. Wade, as state Sen. Whitney Westerfield of Christian County warned a rally of abortion opponents supporting the amendment at the state Capitol on Oct 1. "It does nothing more than prevent our state Supreme Court from creating its own Roe," he said.

The rally drew counter-protesters, whose most common chant was "Abortion is health care." They were at the foot of the Capitol's walkway, while amendment supporters were just in front of the building's steps, citing largely religious reasons for their stance. Since then, three Jewish mothers from Louisville have sued to block the amendment, saying it would violate their faith's principles.

In his injunction, Perry cited the religious-freedom section of the state constitution, which says "The civil rights, privileges or capacities of no person shall be taken away, or in anywise diminished or enlarged, on account of his belief or disbelief of any religious tenet, dogma or teaching. No human authority shall, in any case whatever, control or interfere with the rights of conscience."

Perry said abortion-rights supporters were likely to win a lawsuit based on that and other sections of the state constitution that say Kentuckians have “the right of seeking and pursuing their safety and happiness” and “Absolute and arbitrary power over the lives, liberty and property of freemen exists nowhere in a republic, not even in the largest majority.” Kentucky courts have found in those words a limited right to privacy.

A state Court of Appeals judge blocked Perry's injunction pending further action, and a fractured state Supreme Court went along with that, so the only legal abortions in Kentucky now are those needed to save the woman's life or prevent permanent damage to a life-sustaining organ. That is the trigger law's wording.

(Only three of the seven Supreme Court justices 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 of Paducah, who joined in that opinion. Keller, a registered independent who was appointed in 2013 by then-Gov. Steve Beshear, a Democrat, is on the nonpartisan ballot in the 6th Supreme Court District against state Rep. Joe Fischer of Fort Mitchell, who sponsored the trigger law and is running as "the conservative Republican.")

Opponents of the amendment, including Gov. Andy Beshear, are emphasizing the fact that it would maintain the status quo and make abortion virtually impossible in Kentucky, even in cases of rape, incest or threat to the woman's health.

"If Amendment 2 passes my granddaughter may not have the right to get an abortion to stay alive," a woman says in the latest television spot from Protect Kentucky Access, the anti-amendment group. That appears to overstate the case, but the trigger law's exceptions could be subject to court action and state administrative regulation.

While the trigger law has no exceptions for cases of rape, incest or protection of women's health, it would not prevent the legislature from adding them to the law; it would only keep courts from doing so.

Opponents of the amendment say the legislature has already made its positions clear. Another law bans abortion after the sixth week of pregnancy, when a fetal heartbeat can first be detected.

The first TV spot from Protect Kentucky Access overstated the effect of the amendment by saying, “Amendment 2 means no abortions, no exceptions.” The speaker was Courtney Bennett, who identified herself as a Kentucky woman who had medical complications, as did her baby, that required an abortion.

“We wanted this baby, but both me and the baby were at risk,” Bennett said. “Kentucky politicians don’t understand: their mandate will put women’s lives in danger. It’s an impossible decision. I can’t imagine a politician making it for me.”

Westerfield told the pro-amendment rally that opponents of the amendment are using "myths and confusion" to mislead voters. He urged them to talk with their neighbors and get yard signs that have a bottom line saying "PROTECT TAXPAYER DOLLARS," indicating an effort to take the arguments beyond the moral and religious.

Yes for Life, the main group supporting the amendment, has raised about a fifth the money as Protect Kentucky Access but is expected to get much organizational help from churches and religious groups.

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

WFPL image

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."

Health bills were among those that passed (some with overrides of vetoes) and failed in the last two days of the legislative session

By Melissa Patrick
Kentucky Health News

The Republican legislature overrode more than two dozen of Democratic Gov. Andy Beshear's vetoes Wednesday and Thursday, including a wide-ranging abortion bill that was immediately challenged in court and another that sets new rules for public-assistance programs, including Medicaid. 

Tulips in front of the state Capitol

The General Assembly ended its session after passing a number of health-related bills on a wide range of topics, including youth mental health, increased access to mental health and addiction recovery care, a behavioral-health pilot program for low-level offenders, postpartum care for low-income Kentuckians, research into medical marijuana, and the recruitment and retention of health-care providers. 

The anti-abortion measure, House Bill 3, bans mailing of medications that have become the means for most abortions in Kentucky, strengthens parental-consent rules and bans abortion after the 15th week of pregnancy, mimicking a Mississippi law that is awaiting a decision from the U.S. Supreme Court. 

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

Kentucky's only 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 because of an emergency clause.

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

The American Civil Liberties Union of Kentucky 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," the 1973 Supreme Court decision creating a constitutional right to abortion before a fetus can live outside the womb. 

Lawmakers also overruled Beshear's veto of HB 7, a public-assistance reform bill aimed at reducing fraud and getting able-bodied adults without dependents back into the workplace. Beshear vetoed the bill because, among other things, he said it will result in making it harder for people who need the benefits to get them and will result in people losing benefits. 

Health bills that passed in the last days of session

HB 44, sponsored by Bobby McCool, R-Van Lear (Johnson County), allows local school boards to include mental health as a reason for an excused absence. Rep. Lisa Willner, D-Louisville, praised the passage of this bill, noting that it came from students at several Kentucky schools. This bill also removed part of a new law that would have created criminal penalties for teachers who didn't teach racial history the way called for by the new law, Senate Bill 1, also passed over a veto. 

Senate Bill 102, sponsored by Sen. Max Wise, R-Campbellsville, requires local school superintendents to provide a yearly census of all school-based mental-health providers and their duties to the state Department of Education, not just a list of school counselors. 

SB 90, sponsored by Sen. Whitney Westerfield, R-Crofton, creates a pilot program to divert some qualifying low-level offenders away from jail and into treatment for substance-use disorder or mental-health issues. 

Negotiated in a late House-Senate conference committee, the bill gives the project $11 million a year from the settlement that Kentucky and other states received from opioid manufacturers and distributors.

HB 573, sponsored by Rep. Kim Moser, R-Taylor Mill, establishes the Healthcare Worker Loan Relief Program for qualifying health-care workers with jobs that require four-year degrees. This program is meant to help recruit and retain healthcare workers in rural and underserved areas of Kentucky.

The program would be aligned with the Kentucky State Loan Repayment Program and administered by the University of Kentucky's Center for Excellence in Rural Health. The budget has $2 million in each fiscal year from the American Rescue Plan Act of 2021, the last pandemic-relief bill.   

SB 178, sponsored by Sen. Julie Raque Adams, R-Louisville, ended up being a catch-all bill for several health-related issues. It requires Medicaid to provide coverage to new mothers up to 12 months after giving birth; sets new rules for certification of alcohol and drug counselors; allows licensed narcotic treatment programs to use buprenorphine products to treat patients; and requires third-party oversight over the state's single Medicaid pharmacy benefit manager; and bars termination of parental rights of a mother whose child suffers from neonatal abstinence syndrome if the mother agrees, prior to discharge from the hospital, to participate in a court-ordered treatment program that includes peer supports. 

HB 604, sponsored by Moser, also became a catch-all bill that at its core establishes the Kentucky Center for Cannabis Research at the University of Kentucky. The budget allocates $2 million in the fiscal year that begins July 1 to start the center. Other health provisions in this bill create the mobile crisis services fund and to the Commonwealth West Healthcare Workforce Innovation Center. 

Health bills that got stuck in the Senate

HB 136, sponsored by Rep. Jason Nemes, R-Louisville, which would have legalized medical cannabis in Kentucky did not gain any traction in the Senate after passing out of the House. Senate President Robert Stivers has long said that he believes more research is needed before such a bill should pass. 

HB 354, sponsored by Rep. Russell Webber, R-Shepherdsville, would have created a path for Kentucky's advanced practice registered nurses to prescribe controlled substances independently. "I'm sure that bill will come back some time in the future," said Senate Majority Floor Leader Damon Thayer in the closing hours of the session.